India: Living Daughters Of Living Coparceners In Or After 2005 To Share Equally In Hindu Joint Family Property

Last Updated: 9 February 2016
Article by V. Srinivasa Raghavan

Supreme Court - on the effect of the 2005 amendment to The Hindu Succession Act

Indian Parliament enacted the Hindu Succession (Amendment) Act, 2005 ("the Amendment Act" or "the 2005 Amendment") so as to confer equal right to a daughter to a share in Hindu joint family property by deeming a daughter to be a coparcener. However, the question as to whether this amendment was retrospective in nature or prospective in nature, whether it applied to cases where the succession had already opened before the 2005 Amendment, what would be the effect of the daughter being declared to be a coparcener by birth, would her right to a share date back to the date of her birth, or would it apply to only a female born after 2005, were all questions which have vexed the Courts for the last 10 years. Different views were taken by different High Courts.

The Supreme Court judgment in Prakash and Ors vs Phulvathi and Ors {2015(6) Kar L J 177; 2015(11) SCALE 643} seeks to put a rest to these questions. The Supreme Court has categorically held that the Amendment Act is prospective in nature. Therefore, it is only from 09/09/2005 onwards that the daughters would be considered as coparceners and have an equal share as that of sons in joint family property. However, this does not mean that the daughter has to be born after 2005. The daughter may have been born at any time prior to 2005 but the daughter must be living in 2005 for her to claim a share. This would imply that if a daughter has died prior to 2005, her legal heirs cannot claim that they should be having a larger share on the basis that the daughter, had she been alive, would have had an equal share in the joint family properties.

The Supreme Court has added one more caveat to the above entitlement. Since the enactment provided that a daughter of a male coparcener, on and from the commencement of the Amendment Act of 2005, would be entitled to equal share in the joint family properties, the Supreme Court found that as a pre-condition for the daughter to claim a right, even her father must have been alive when the Amendment Act of 2005 came into force. The Supreme Court reasoned that if the father had died prior to 09/09/2005, succession would already have opened to his estate and his property or his interest in joint family property would already have stood shared or vested in his legal heirs as per the law which was in force before the 2005 Amendment and the intention of the lawmakers could not have been to disturb the succession which had already opened prior to 09/09/2005 and to enlarge her share retrospectively. The position would be the same irrespective of whether there has been an actual partition or not after the death of the father, in as much as the law would provide for a notional partition on the death of the father.

Therefore it would emerge that while there can be no doubt that a daughter born after the 2005 amendment would be a coparcener and have an equal share as that of a son, in joint family property ( provided her father was living as at the date of the 2005 Amendment coming into force), as regards a daughter born prior to the 2005 Amendment, she would have to be living and her father also would have to be living as on the date of the 2005 Amendment for her/her legal heirs to claim a share in joint family property as a coparcener. However even if these conditions were satisfied, if there has been an alienation or disposition or transfer of any joint family property or a registered partition thereof prior to 20th December 2004, that would not be affected by the daughter's claim as a coparcener after the 2005 Amendment.

It must be noted here that even prior to 2005, on the death of the father, the daughter would have had a share in joint family property but only on the death of her father and her share would be from within the share which her father would have had in the joint family property at the time of his death. But by virtue of the Amendment Act after 9/9/2005, if her father is alive as at that date, her share would not depend on the death of the father and she would have a direct share in the joint family property just like a son would have. Of course here it must be further noted that even prior to the 2005 Parliamentary Amendment, some states such as Karnataka had enacted laws by which daughters would have had equal rights in joint family property even prior to the 2005 Amendment, subject to certain conditions.

To understand the implications of the judgment, it would be useful to refer to an illustration (which does not take into consideration certain prior state amendments conferring equal rights to daughters in joint family property).

  1. Take a Hindu joint family comprising of a father F, a daughter D and a son S and assuming that the family had joint family property. Prior to the 2005 amendment, on the death of father F, the daughter D would have obtained only a 1/4th share in the joint family property with 3/4th share going to the son S. If the father F, had died before 9/92005 and even if there were to be a dispute or a case pending between D & S as to sharing of the property and during the pendency of the suit, the 2005 amendment came into force, as per the above decision of the Supreme Court, the daughter D's right will not stand increased to ½ share and it will continue to remain as 3/4th share, the reason being the father had died prior to 2005 Amendment and succession had already opened up as per the law then prevailing.
  2. In the above situation, if the father F had died after 9/9/2005, then by virtue of the 2005 amendment, the daughter D would have a ½ share equal to that of the son S in the joint family property.
  3. Take a situation where during the lifetime of the father itself the daughter D had died before the 2005 amendment, let us say in 2002, leaving behind 2 sons DS1 & DS2 and the father is still alive. The question is whether the daughter D's children can claim a share in the joint family property post the 2005 Amendment. As per the above decision of the Supreme Court, since the daughter herself was not alive as on the date of the 2005 Amendment, her children cannot claim any share in the joint family property. They will have to await the death of their grandfather i.e., daughter D's father F. Even if the daughter D's father F dies after 2005 amendment in the above situation, even then, though the daughter D's children may get 1/4th share in the joint family property being the children of the pre-deceased daughter of their grandfather, they would still not have equal share with their uncle viz., S.

The requirement that for a daughter to claim a share as a coparcener, the father must have been living as of the commencement of the 2005 Amendment, can at least be possibly gathered from the wordings used in the Amendment Act. However, unfortunately while holding that the daughter also has to be living as at the commencement of the 2005 Amendment Act and thus depriving children/heirs of a daughter the Supreme Court has clearly overlooked S. 6(3) (b) of the Amended Hindu Succession Act. This provision specifically stipulates that after 2005 if a male Hindu dies, his daughter's legal heirs would get the share which the daughter would have got had she been alive at the time of the death of the Hindu father. Therefore notwithstanding that a daughter may have died prior to the 2005 Amendment, if her father dies thereafter, she would be deemed to be living at that time and her share would go to her heirs. The share she would get if we she were deemed to be living after 2005 would be a share as a coparcener, equal to that of the son. Even the Bombay High Court which had ruled in Bhadrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari (AIR 2014 BOM 151), that a daughter had to be living as at the commencement of the 2005 Amendment, has not considered the effect of the above provision.

On the issue as to what would be the position if the father and daughter were both living after 2005 but the father had entered into an oral or unregistered partition with his sons prior to 20th December 2004, where there had been a severance in the joint family followed by a recording of the division in the local authority's records, certain observations of the Supreme Court seem to indicate that if the pre 2005 Amendment partition had been valid under the law then existing, then the Amendment would not allow the daughter to ignore it and claim a share . The logic would be that since there had been a partition involving the father before 2005 (even if oral, which was valid under the law then existing), he would no longer be a coparcener in 2005 and hence in or after 2005 the daughter would not be a daughter of a coparcener and hence cannot claim rights so as to disturb the actual partition that had already taken place. This conclusion had been previously arrived at even by the Bombay High Court in Bhadrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari. However the Bombay High Court had clarified that a mere oral partition prior to the 2005 Amendment would not suffice but it must have been followed by an actual partition by metes and bounds and a reflection of the divided ownership in local authority's records. However the Supreme Court judgement is silent on this aspect. The observations of the Supreme Court could be used to argue that an oral partition prior to the 2005 Amendment even if not followed by a division by metes and bounds would have resulted in the severance in status and the father would not remain a coparcener but a co-owner and hence post the 2005 Amendment the daughter would not be entitled to an equal share as she is not the daughter of a "coparcener". A clear express intention to divide also leads to severance in status. Therefore by the above logic, even if the father and daughter were to be alive post the 2005 Amendment but if the father were no longer to be a coparcener in view of severance in status, whether by a declaration, an oral partition or even a suit for partition having been instituted prior to the 2005 Amendment, it would lead to the conclusion that the daughter of such a father also cannot claim an equal share in joint family property. This seems to be contrary to the intention of the Parliament of saving only registered partitions to avoid contrived or concocted pleas being set up of a severance in status prior to the 2005 Amendment More thought could have been given by the Supreme Court to this issue also, which it unfortunately did not, thus leaving scope for further litigation and differences between High Courts on this aspect.

Further, though the judgment of the Supreme Court arose from Karnataka where the state legislature had enacted an amendment to the Hindu Succession Act in 1990 giving equal rights to daughters in coparcenary property, provided they were unmarried as on the date of Karnataka amendment, which came into force in 1994, the Supreme Court has not dealt with the question as to what would be the effect of the Parliamentary Amendment on the rights which had already vested in daughters by virtue of some of the state amendments. The Supreme Court has observed that the 2005 Amendment of the Parliament was prospective and was not meant to unsettle rights that had vested under the laws which were in existence prior to the 2005 Amendment. By this logic, one can assume that the rights which had vested in daughters to be treated as coparceners by virtue of some of the state amendments would therefore not be taken away by the 2005 Amendment. However, even in those states, from 09/09/2005, the rights of such daughters would be governed by the 2005 Amendment as the Parliamentary amendment would prevail over the state amendments.

Notwithstanding that certain other issues as discussed above could have been clarified, the judgment of the Supreme Court has gone a long way in settling some of the controversies that had arisen post the 2005 Amendment Act. It brings in clarity to those cases where succession had already opened prior to 2005 Amendment Act itself. To that extent, it has brought in certainty because in those cases where succession had already opened prior to 2005 amendment, people would have arranged their transactions, shared properties or gone about arranging their shares or making improvements on properties on the basis of the law then existing. Women may feel let down though, in view of the conditionality being brought in of a living father and living daughter being required as of 9/9/2005. Further the conditionality of the daughter being alive as of the commencement of the 2005 Amendment is contrary to an express provision {S.6 (3)(b)} of the 2005 Amendment Act. One can expect this judgement being revisited by the Supreme Court itself in the near future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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