DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
DISTRIBUTION OF PROPERTY TO DAUGHTER UNDER HINDU SUCCESSION ACT

SUBJECT
FAMILY LAW II

NAME OF THE FACULTY

S.RADHA KRISHNA

A.MAMATHA DEEN DAYAL

2014016, 4TH Semester

Section A
TABLE OF CONTENTS

1.DAUGHTERS GET EQUAL SHARE

2. BACKGROUND OF AMENDMENT
Concept of Joint Family in a nutshell
before amendment 2005
post amendment 2005
how to assert your right ? filing a suit for partition
3.CRITICAL APPRAISAL OF THE HINDU SUCCESSION (AMENDMENT) ACT, 2005
4.CHANGES BROUGHT IN THE POSITION OF THE WOMEN

7.DAUGHTERS RIGHTS

CERTIFICATE

TITLE OF SUBJECT: FAMILY LAW II

NAME OF FACULTY: Dr. S. RADHA KRISHNA

I A.MAMATHA DEEN DAYAL hereby declare that this project case study:
DISTRIBUTION OF PROPERTY TO DAUGHTER UNDER HINDU SUCCESSION ACT.
Submitted by me is an original work undertaken by me. I have duly acknowledged all the
sources from which the ideas and extracts have been taken. The project is free from any
plagiarism issue.
PLACE: Vishakhapatnam.

(Signature of the student)

Roll no: 2014016
Semester-4TH
Section-A

AIMS & OBJECTIVES OF THE STUDY

The researcher main aim and object of the study is to know the contradiction between uniform
civil code and personal laws.
SIGNIFICANCE & BENEFIT OF THE STUDY
The amendment to the Hindu Succession Act giving daughters equal rights to ancestral property
is applicable even for girls born before the law was changed in 2005, the Bombay High Court
has said."Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is
retroactive (taking effect from a date in the past) in operation," a full bench stated on Thursday.
"In other words, the provisions of the amended section 6(3) do not and cannot impinge upon or
curtail or restrict the rights of daughters born prior to 9 September 2005," the judges said that
The Hindu Succession Act, 1956, originally didn't give daughters equal rights to ancestral
property. This disparity was removed by an amendment that came into force on September 9,
2005.
SCOPE OF THE STUDY
The study was focused on distribution of property to daughter under Hindu secession act. The
researcher formulated the scope and limitations of the study to identify the boundaries of this
study.
RESEARCH METHODOLOGY
The process used to collect information and data for the purpose of making business decisions.
The methodology may include publication research, interviews, surveys and other research
techniques, and could include both present and historical information. In this project the
researcher is using doctrinal type of research methodology.
HYPOTHESIS
The researchers hypothesis before the enactment of the Hindu Succession Act in 1956, Hindus
were covered by shastric and customary laws that varied from region to region. Under the
Mitakshara school of Hindu law, a woman in a joint Hindu family had the right only to
maintenance/ sustenance but not to inheritance of property. Consequently, if a partition took

place in the coparcenary (joint family) property, then each male coparcener was entitled to a
share. But a daughter did not get a share. The daughter would only get a share as one of the heirs
on the death of coparcener.

CHAPTER - 1

INTRODUCTION
DAUGHTERS GET EQUAL SHARE
Daughters Get Equal Share In The Coparcenary Property - A Critique In Respect To The
Amendment Brought In The Hindu Succession Act"
"Women constitute half the world's population, perform nearly two-thirds of its hours, and
receive one-tenth of the world's income and less than one hundredth of the property."-- The
United Nation's Report, 1980.
Former Prime Minister Jawaharlal Nehru championed the cause of women's right to inherit
property and the Hindu Succession Act was enacted and came into force on June 17, 1956.Many
changes were brought about that gave women greater rights but they were still denied the
important coparcenary rights. Subsequently, a few States enacted their own laws for division of
ancestral property.
In what is known as the Kerala model, the concept of coparcenary was abolished and according
to the Kerala Joint Family System (Abolition) Act, 1975, the heirs (male and female) do not
acquire property by birth but only hold it as tenants as if a partition has taken place.
Andhra Pradesh Tami Nadu, Karnataka and Maharashtra also enacted laws, where daughters
were granted coparcener' rights or a claim on ancestral property by birth as the sons. In 2000,
the 174th report of the 15th Law Commission suggested amendments to correct the

discrimination against women, and this report forms the basis of the present Act. Discrimination
against women was the key issue before the Law Commission.
The amendment made in 2005 gives women equal rights in the inheritance of ancestral wealth,
something reserved only for male heirs earlier. It indeed, is a significant step in bringing the
Hindu Law of inheritance in accord with the constitutional principle of equality. Now, as per the
amendment, Section 6 of the Hindu Succession Act, 1956 gives equal rights to daughters in the
Hindu Mitakshara coparcenary property as the sons have. The amendment was made because
there was an urgent need for certainty in law.
Though the 2005 amendment gives equal rights to daughters in the coparcenery. An important
question is still unanswered whether women or daughters can be allowed to become managers or
karta of the joint family. The objection to this issue of managing a joint family as visualized is
that daughters may live away from the joint family after their marriage but it is well appreciated
that women are fully capable of managing a business, taking up public life as well as manage
large families as mothers. Another doubt being considered is that as managers of their fathers'
joint family they could be susceptible to the influence of their husbands or husbands' families.

CHAPTER 2

BACKGROUND OF AMENDMENT

Since this is an area of profound concern these days, and Ive been facing endless queries on this,
here is a basic & overly simplistic laymans view on the law as it was before 2005 and after it

vis-a-vis daughters right in joint family/coparcenary/ancestral properties among Hindus in India.

Concept of Joint Family in a nutshell

We all are aware of the concept of a Joint Family wherein people related by blood/marriage
descending from a common ancestor form a unit, live, work, worship together. This includes all
sorts of people, sons/daughters (married, widowed or otherwise), mother, widows of sons etc. All
these people have right to maintenance out of joint family properties and assets.
The Coparcenary
Within this group there is a narrower group called the coparcenary, with its constituents being
referred to as the coparceners have birth rights (ownership) in the joint family/ancestral
properties, which they can get culled out anytime by a partition, they have the right to
sell/gift/will away their share of the property, they also have the power to assail any wrongful
transfer of property made by Karta (Karta, for those who arrived late is the eldest lineal member
of the family, entrusted with task of managing the property, Karta has the power to even alienate
the whole of property in certain circumstantial compulsions).
BEFORE 2005
Now before 2005 only son, sons son, sons sons son were coparcenors, with the daughters only
having a right to reside in the property and get their marriage expenses defrayed out of the same.
A son would acquire proportionate ownership in the property moment of its conception, but not
the girls.

POST 2005

Post 2005 now a daughter also would acquire ownership rights on the property from the time
of her conception (provided of course she is born alive). She has the same rights of partition and
power to deal with the property as she pleases, this right extends to seeking a partition and sale
of the family home as well. Hence there is a complete parity in terms of rights. However it
would be profitable to remind ourselves that these rights extend to only ancestral properties (or
joint family properties are properties which people inherit from their paternal
ancestors/property through into common hotchpotch/property acquired by joint family
efforts/accretions etc) and not separate properties (which include property earned by
gift/will/acquired through purchase from own funds/acquisitions from own skill etc.)
But there is a rider - The right to get your equivalent share of the property can be exercised only
in cases where there has been no formal partition (partition either through court final decree or
through a registered partition deed) before 20.12.2004. In case a partition has already been
finalized before the said date, the right collapses.
HOW TO ASSERT YOUR RIGHT ? FILING A SUIT FOR PARTITION

The Daughters (married, widowed or unmarried) now can approach the civil court for seeking a
partition from their brothers/family/father etc. Their right is equal. Once acquired a lady is free to
deal with the property the way she likes and it becomes her absolute property and her children
have no right during her lifetime.
A Daughter can file a suit for partition, on which certain court fees is payable. This court fee
depends on the value of her share in the property and has to be calculated as per court fee chart.

Does a married daughter have any rights on her father's property?

My Grandfather(Mother's father) have 4 children. 3 married daughters and 1 married son.
In 1996, my grandfather gave two plots to daughter no. 3. The owner of the plots were my
grandfather or grandmother. Now the total cost of the both plots are 50 Lakhs.
In other hand my Grandfather has a house of the same cost 50 lakhs which can be given to the
son or All remaining 3 children i.e. Son, My mother and Sister no. 1. (But let's assume we 3 are
agree to give the house to the son only).

Now, my grandfather also have a farm of which cost is same 50 lakh.

So, according to point no. 1 & 2 if Sister no. 3 already have got plots as share in grandfather's
property. And son is going to have house as share in grandfather's property then, should my
mother and sister no 1 claim for equal share in the farm given in point no. 3?
1]My mother is a widow.
2] My grandfather's mother in law had only one daughter who was wife of my grandfather. And
the mother in law had 5 Acre land which is sold by the son of my grandfather and used all the
money by himself only. So, do all 4 children had equal share in that 5 Acre land?
The married daughter have equal right in the parental property after the advent of amendment in
Hindu Succession Act 1956, that came into force since 9th sept 2005.
The Hindu Succession Act, 1956, originally didn't give daughters equal rights to ancestral
property. This disparity was removed by an amendment that came into force on September 9,
2005.
The issue came up before the bench of chief justice Mohit Shah, judges MS Sanklecha and MS
Sonak after conflicting views on the matter expressed separately by a single judge and a division
bench.
A division bench had opined that the amendment applied to daughters born on or after September

9, 2005. As regards daughters born before 9 September 2005, the judges held that they would get
rights in the property upon the death of their father-coparcener (head of a joint family) on or after
September 9, 2005.

The bench's final word

Now in the first case your mother and other sibling cannot claim the share as that was gifted by
your grandfather in his life time. However all of the children (i.e 3 sisters including your mother
and 1 brother) of your grandfather have equal right on the other house and plot land .
The gift from father to his son is not part of ancestral property as the son does not inherit the
property on the death of the grandfather or receive it by partition made by the grandfather during
his lifetime. The grandson has no legal right on such property because his grandfather chose to
bestow a favour on his father which he could have bestowed on any other person as well.
Thus, the interest which he takes in such property must depend upon the will of the grantor and
therefore, when the son has got the property from his father as a gift, his sons or daughter cannot
claim part in it calling it ancestral property. He can alienate the gifted property to anyone he likes
and in any way he likes. Such a property is treated as self-acquired property, provided there is no
expressed intention in the deed of the gift by the grandfather while gifting the property to his son.
(C. N. Arunachala Mudaliar vs C. A. Muruganatha Mudaliar)Sons and daughters have property
rights only on the properties that have devolved upon their father and become ancestral property
in the fathers hands.

CHAPTER -3
Critical Appraisal Of The Hindu Succession (Amendment) Act, 2005-

(l). Devolution of interest in coparcenary property.

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint
Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-(a) by birth become a coparcener in her own right the same manner as the son ;
(b) have the same rights in the coparcenary property as she would have had if she had been a
son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or testamentary disposition of
property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be
held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the time being in force in, as property capable
of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may be, under this Act and not by
survivorship, and the coparcenary property shall be deemed to have been divided as if a partition
had taken place and,(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they
been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased
son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, as
such child would have got had he or she been alive at the time of the partition, shall be allotted to
the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the
case may be.
Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the property that would have been allotted to him if
a partition of the property had taken place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognize any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such
debt: Provided that in the case of any debt contracted before the commencement of the Hindu
Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case
may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act,
2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "greatgrandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be,
who was born or adopted prior to the commencement of the Hindu Succession (Amendment)
Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the
20th day of December 2004.
Explanation- For the purposes of this section "partition" means any partition made by execution
of a deed of partition duly registered under the Registration Act, 1908 or partition affected by a
decree of a court.
Section 6 seeks to make the daughter a coparcener by birth in a joint Hindu family governed by
the Mitakshara law, subject to the same liabilities in respect of the said coparcenary property as
that of a son.
As far as the basic objective of the Act is to remove gender discriminatory practices in the
property laws of the Hindus, whereby daughters have been given the status of coparceners in the
Mitakshara joint family system. However, the position of other Class I female heirs should not
suffer as a result of this move.
However, it does not interfere with the special rights of those who are members of Hindu
Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male
in certain cases.

CHAPTER-4
Changes Brought In The Position Of The Women (Daughters)
Out of many significant benefits brought in for women, one of the significant benefit has been to
make women coparcenary in Mitakshara joint family property. Earlier the female heir only had a
deceased man's notional portion. With this amendment, both male and female will get equal
rights.
The preferential right by birth of sons in joint family property, with the offering of "shradha" for
the spiritual benefit and solace of ancestors, has for centuries been considered sacred and
inviolate. It has also played a major role in the blatant preference for sons in Indian society. This
amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a
significant advancement towards gender equality.
The significant change of making all daughters (including married ones) coparceners in joint
family property - has been of a great importance for women, both economically and
symbolically. Economically, it can enhance women's security, by giving them birthrights in
property that cannot be willed away by men. In a male-biased society where wills often disinherit
women, this is a substantial gain. Also, as noted, women can become kartas of the property.
Symbolically, all this signals that daughters and sons are equally important members of the
parental family. It undermines the notion that after marriage the daughter belongs only to her

husband's family. If her marriage breaks down, she can now return to her birth home by right,
and not on the sufferance of relatives. This will enhance her self-confidence and social worth and
give her greater bargaining power for herself and her children, in both parental and marital
families. Now under the amendment, daughters will now get a share equal to that of sons at the
time of the notional partition, just before the death of the father, and an equal share of the father's
separate share. Equal distribution of undivided interests in co-parcenery property. However, the
position of the mother vis--vis the coparcenary stays the same. She, not being a member of the
coparcenary, will not get a share at the time of the notional partition. The mother will be entitled
to an equal share with other Class I heirs only from the separate share of the father computed at
the time of the notional partition. In effect, the actual share of the mother will go down, as the
separate share of the father will be less as the property will now be equally divided between
father, sons and daughters in the notional partition.
CHAPTER 5
Case Laws In Support Of The Amendment
Even after passing of the Amending Act and substitution of S. 6, a number of questions were
raised in the legal circles as to whether the Amending Act was prospective or retrospective and
whether a daughter born before coming into force of the Amending Act i.e., 9th September 2005
was entitled to benefit under the newly incorporated S. 6 of the Act. There were divergent views
and conflicting arguments.
Fortunately, these issues have now come up before our Courts and we now have the benefit of
some judicial pronouncements on the effect of the new S. 6 of the Act.
In Pravat Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another, (AIR
2008 Orissa 133), the Orissa High Court had occasion to consider the effect of the Amending
Act and the new S. 6 of the Act. It was a case relating to partition of Hindu Mitakshara
coparcenary property. After decision by the lower Court, an appeal was preferred to the High
Court.

The Court held that the Amending Act was enacted to remove the discrimination contained in S.
6 of the Act by giving equal rights and liabilities to the daughters in the Hindu Mitakshara
Coparcenary property as the sons have. The Amending Act came into force with effect from 9-92005 and the statutory provisions create new right. The provisions are not expressly made
retrospective by the Legislature. Thus, the Act itself is very clear and there is no ambiguity in its
provisions. The law is well settled that where the statute's meaning is clear and explicit, words
cannot be interpolated. The words used in provisions are not bearing more than one meaning.
The amended Act shall be read with the intention of the Legislature to come to a reasonable
conclusion. Thus, looking into the substance of the provisions and on conjoint reading, Ss.(1)
and (5) of S. 6 of the Act are clear and one can come to a conclusion that the Act is prospective.
It creates substantive right in favour of the daughter. The daughter got a right of coparcener from
the date when the amended Act came into force i.e., 9-9-2005.
The Court also did not accept the contention that only the daughters, who are born after 2005,
will be treated as coparceners. The Court held that if the provision of the Act is read with the
intention of the legislation, the irresistible conclusion is that S. 6 (as amended) rather gives a
right to the daughter as coparcener, from the year 2005, whenever they may have been born. The
daughters are entitled to a share equal with the son as a coparcener.
The same issue also arose before the High Court of Karnataka in Sugalabai v. Gundappa A.
Maradi and Others [ILR 2007 KAR 4790; 2008 (2) Kar LJ 406]. The Court was considering
appeals where pending the appeals the Amending Act was passed by the Parliament. The Court
held that as soon as the Amending Act was brought into force, the daughter of a coparcener
becomes, by birth, a coparcener in her own right in the same manner as the son. Since the change
in the law had already come into effect during the pendency of the appeals, it is the changed law
that will have to be made applicable to the case. The daughter, therefore, by birth becomes a
coparcener and that there is nothing in the Amending Act to indicate that the same will be
applicable in respect of a daughter born on and after the commencement of the Amending Act.
In coming to the conclusion, the Court referred to the following principles of interpretation of
statutes as laid down by the Apex Court :

(1) Statutory provisions which create or take away substantive rights are ordinarily prospective.
They can be retrospective if made so expressly or by necessary implication and the retrospective
operation must be limited only to the extent to which it has been so made either expressly or by
necessary implication.
(2) The intention of the Legislature has to be gathered from the words used by it, giving them
their plain, normal, grammatical meaning.
(3) If any provision of a legislation, the purpose of which is to benefit a particular class of
persons is ambiguous so that it is capable of two meanings, the meaning which preserves the
benefits should be adopted.
(4) If the strict grammatical interpretation gives rise to an absurdity or inconsistency, such
interpretation should be discarded and an interpretation which will give effect to the purpose will
be put on the words, if necessary, even by modification of the language used.
The Court also applied the principles stated in American Jurisprudence (2nd Edition, Vol. 73,
Page 434, Part 366) quoted with approval by the Supreme Court in S. R. Bommai v. Union of
India, (AIR 1994 SC 1980).
One additional issue was raised before the Court in this case as to whether there was a conflict
between the Amending Act and the provisions of the Hindu Succession (Karnataka Amendment)
Act, 1994. The Court held that When there is a conflict between the State law and the
subsequent law made by the Parliament on an Entry in Concurrent List, it is the law made by the
Parliament that will prevail over the State Law even though the State law was passed after
obtaining assent of the President and it is not necessary that law made by the Parliament should
expressly repeal a State law.
It is submitted that, in view of the aforesaid decisions of the Orissa and the Karnataka High
Courts, the issue is presently settled and that the daughter of a coparcener becomes, by birth, a
coparcener in her own right in the same manner as the son, irrespective of whether she was born
before or after the Amending Act came into force.

CHAPTER-6
Property: Daughter has share but father has will
Despite a historic amendment in 2005, the Hindu inheritance law still suffers from gender bias.
It is 10 years since the daughter has been brought on a par with the son under the Hindu
Succession Act, 1956 (HSA). This historic amendment of 2005 never made much of a splash
though, unlike other far-reaching enactments of the same year such as RTI, NREGA and even the
domestic violence law.
The lack of buzz about giving the daughter as much share as the son in the joint family property
may seem ironic considering that this very proposal was one of the main reasons why the
consolidated Hindu Code Bill championed by India's first law minister B R Ambedkar had been
scuttled in the nascent republic to appease conservative forces.

Does this mean that the notoriously patriarchal Hindu society has since become more
accommodating of gender equality? Not necessarily, for there is little data available on the extent
to which the amended Section 6 of the HSA conferring the same rights and liabilities on the
daughter and the son in the ancestral property has been implemented across the country.
Unlike in the case of RTI and NREGA, there has been no noticeable attempt on the part of the
government to spread awareness about the change in property rights. Nor have civil society
groups been anywhere as vigilant in monitoring the enforcement of HSA 2005 as they have been
about

the

accrual

of

benefits

from

the

more

high-profile

laws

of

that

year.

RIGHTS VS RELATIONS
Anecdotal evidence suggests that the import of the 2005 amendment is yet to sink in among the
intended beneficiaries. Whether the women concerned are still ignorant about their new
succession rights or have chosen to ignore them, Hindu ancestral properties have largely
remained the preserve of their male counterparts.
As a study conducted by a feminist group, Partners for Law in Development, put it, "The de
facto situation continues to be one where women forfeit these rights to avoid strained family
ties." What is particularly difficult for the daughter is to invoke her entitlement, under the 2005
amendment, to claim partition of an ancestral home even when male heirs from her family are
residing there. Apart from the lag in the implementation of the 2005 amendment, the Hindu
inheritance law is in need of further changes for it to be rid of the remnants of gender
discrimination.

Heirs of a woman

One such remnant flagged by the Law Commission in 2008 relates to the implications of a Hindu
woman dying without leaving behind a will. If she dies as a childless widow, the husband's heirs
alone inherit her estate. But then, since she is entitled post-2005 to inherit property from her
parents' side as well as her husband's side, would it not be logical to give equal rights of
succession to her heirs from both sides?

The Law Commission suggested that Section 15 of the HSA 1956 be amended so that "in case a
female Hindu dies intestate leaving her self-acquired property with no heirs, the property should
devolve on her husband's heirs and also on the heirs of her parental side". This would surely be
an apt sequel to the 2005 amendment, which too had been effected at the instance of the Law
Commission.
Another retrograde provision waiting to be discarded is a gratuitous concession made to the
Hindu right in 1954 while enacting a secular law for solemnizing nondenominational "civil
marriage". Section 19 of the Special Marriage Act says that any marriage performed under that
law of a Hindu belonging to an undivided joint family shall be deemed to result in his "severance
from such family". Thus, there is a statutory sanction to disinheriting from the ancestral wealth
any Hindu who resorts to civil marriage, which is an option available to those who wish to avoid
religious rituals or marry outside the community (without converting the spouse).
Such a disincentive to civil marriage is out of sync with the spirit of the 2005 amendment and the
social trend towards inter-caste and inter-community marriages. It also serves as an obstacle to
India

moving

towards

its

constitutional

goal

of

uniform

civil

code.

The equality granted to the Hindu daughter in the context of ancestral property cannot make
much difference on the ground unless this concept of curtailing the right to will away selfacquired properties is adopted. This may , however, amount to privileging equality over liberty to
check a mischief.
The amendment to the Hindu Succession Act giving daughters equal rights to ancestral property
is applicable even for girls born before the law was changed in 2005, the Bombay High Court
has said.

"Section 6 of Hindu Succession Act, 1956 as amended by the Amendment Act of 2005 is
retroactive (taking effect from a date in the past) in operation," a full bench stated on Thursday.
"In other words, the provisions of the amended section 6(3) do not and cannot impinge upon or
curtail or restrict the rights of daughters born prior to 9 September 2005," the judges said.
The amendment
The Hindu Succession Act, 1956, originally didn't give daughters equal rights to ancestral
property. This disparity was removed by an amendment that came into force on September 9,
2005.
The issue came up before the bench of chief justice Mohit Shah, judges MS Sanklecha and MS
Sonak after conflicting views on the matter expressed separately by a single judge and a division
bench.
A division bench had opined that the amendment applied to daughters born on or after September
9, 2005. As regards daughters born before 9 September 2005, the judges held that they would get
rights in the property upon the death of their father-coparcener (head of a joint family) on or after
September 9, 2005.
Difference in opinion
But a single judge disagreed with the view of the division bench and stated that the amendment
was retrospective in operation, that it was applicable from June 17, 1956, the date on which the
Hindu Succession Act came into force. It would apply to all daughters of a coparcener who are
born either before or after September 9, 2005 as well as daughters born before or after June 17,
1956.
According to the single judge a daughter, by birth, becomes a coparcener in a Hindu coparcenary
in her own right in the same manner as a son, having the same rights in the coparcenary property
as she would have had if she had been a son, and subject to similar liabilities.

Uday Warunjikar, counsel for one of the petitioners, argued that the amendment was brought into
force to remove the inequality between the heirs. "The amendment gives the right to the daughter
irrespective of date of birth," Warunjikar argued.
Senior counsels Anil Anturkar and Girish Godbole also argued that the amendment was
retrospective in nature.
However, counsels for the respondents argued that section 6 should be read prospectively and it
applied only to the daughters born on or after September 9, 2005.
The bench's final word
The full bench disagreed with this and stated that the daughters would have equal share in the
ancestral property, irrespective of their date of birth.
"The amended section 6 applies to daughters born prior to June 17, 1956 or thereafter (between
June 17, 1956 and September 8, 2005), provided they are alive on September 9, 2005, that is on
the date when the amendment act of 2005 came into force," the judges observed in their order,
running into 72 pages.

A DAUGHTER'S RIGHTS
Before the enactment of the Hindu Succession Act in 1956, Hindus were covered by shastric and
customary laws that varied from region to region.
Under the Mitakshara school of Hindu law, a woman in a joint Hindu family had the right only to
maintenance/ sustenance but not to inheritance of property.
Consequently, if a partition took place in the coparcenary (joint family) property, then each male
coparcener was entitled to a share. But a daughter did not get a share. The daughter would only
get a share as one of the heirs on the death of coparcener.

CONCLUSION

The objective of the Amending Act indicates the objective as the removal of discrimination
against daughters inherent in the mitakshara coparcenary and thereby eradication of the baneful
system of dowry by positive measures thus ameliorating the condition of women in the human
society.
It is necessary to understand that if equality exists only as a phenomenon outside the awareness
and approval of the majority of the people, it cannot be realized by a section of women socialized
in traditions of inequality. Thus there is need to social awareness and to educate people to change
their attitude towards the concept of gender equality. The need of the hour is also to focus
attention on changing the social attitudes in favor of equality for all by enacting a uniform law.
The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy;
efforts to enhance social awareness of the advantages to the whole family if women own
property; and legal and social aid for women seeking to assert their rights, are only a few of the
many steps needed to fulfill the change incorporated in the Act.
BIBLIOGRAPHY
Primary Sources
Hindu Women's Right to Property Act, 1937.
Hindu Succession Act, 1956 & 2005.
Secondary Sources
Books
Mulla, Principles of Hindu Law (1998 17th ed. by SA Desai), p. 168.
Mayne's, Treatise on Hindu Law & Usage, (1996 14th Edn., edt. by Alladi Kuppuswami p. 1065.
M. Indira Devi, "Woman's Assertion of Legal Rights to Ownership of property" in Women &
Law Contemporary Problems, (1994 edt. by L. Sarkar & B. Sivaramayya) p. 174

Dr. Diwan Paras, Modern Hindu Law 16th Edition, Allahabad Law Agency, Page no. 290-294.
Darret J., Duncan M. "Essays in Classical and Modern Hindu Law" Vol.2, Universal Book
Traders Page no. 114.
ARTICLES
174th Report of Law Commission of India under the Chairmanship of Justice B.P. Jeevan Reddy,
vide D.O. No. 6(3) (59)/99-LC (LS), dated 5th May, 2000.
7th Report of Parliamentary Standing Committee dated 13th May, 2005.
Url's
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