WOMEN SHARE IN ANCESTRAL PROPERTIES - AN UPDATE

The Supreme Court of India in a ruling that will restrict the right of women seeking equal share in ancestral property, said that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force.(2005)

The father (Coparcenor) must be alive on the date of amendment (2005) and the daughter must also be alive to claim her share in the ancestral properties.

The court held that the amended provisions of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect despite it being a social legislation.

The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.

The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005.

The apex court judgment has now added another disqualification for women regarding their right of inheritance. Until now, they could not ask for a share if the property had been alienated or partitioned before December 20, 2004, the date the Bill was introduced. This judgment makes it imperative for the father to have been alive when the amendment came into force.

Settling the law in the wake of a clutch of appeals arising out of high court judgments, a bench of Justices Anil R Dave and Adarsh K Goel recently held that the date of a daughter becoming coparcener (having equal right in an ancestral property) is “on and from the commencement of the Act”.

The bench overruled the view taken by some high courts that the amendment being a gender legislation that aimed at according equal rights to the daughter in ancestral property by removing discrimination, should be applied retrospectively.

Interpreting statutory provisions, the top court shot down the argument that a daughter acquires right by birth, and even if her father had died prior to the amendment, the shares of the parties were required to be redefined.

“The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text,” it said.

Further, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent, noted the court, adding “even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature”.

About applicability of the amendment to the daughters born before it was brought, the bench held that the new law would apply irrespective of the date of birth.

“All that is required is that the daughter should be alive and her father should also be alive on the date of the amendment,” it said.

The court also held that alienation of ancestral property, including its partition, which may have taken place before December 20, 2004, in accordance with the law applicable at that time, would remain unaffected by the 2005 amendment, and those partitions can no longer be reopened by daughters.