Daughters born before 2005 have right in their fathers’ property, says Supreme Court
I In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have e right to their father’s ancestral property..
In a ruling that will ensure equality between men and women, the Supreme Court on Friday made it clear that women born before 2005 have equal right on ancestral property. The apex court stated that the Hindu Succession Act 2005 which gives equal rights to daughters on ancestral property, will be applied to all women including those born before the year.
A bench of Justices AK Sikri and Ashok Bhushan said that the share in ancestral property could not be denied, to a woman, on the ground that she was born before the law was passed, and the law was applicable in all property disputes filed before 2005 and pending when the law was framed. The bench added that the amended law stipulated that a daughter would be a “coparcener” (one who shares equally in inheritance of an undivided property) since birth, and have the same rights and liabilities as a son.
“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. These changes have been sought… on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected,” the bench was quoted as saying by TOI.
Passing the order on a plea filed by two sisters seeking a share in their late father’s property, the court said that the law was amended to give women equal status with men in matters related to ancestral property. The two sisters approached the apex court after the trial court in 2007 dismissed their plea saying that they were not entitled to any share as they were born before 2005. The High Court also rejected their plea. Setting aside the High Court order, the Supreme Court said that the year of birth was not a criterion to decide whether a woman was covered under the amended law.
In 2015, the Supreme Court had 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. 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.
Law Commission recommended for the omission of Section 23 from the 1956 Act.
The Commission advocated that daughters should get full right of residence in their
parental home. It was also viewed by the Commission that the bar on partition by
female heirs could take away the true spirit of coparcenery right. Therefore the
Commission deleted Section 23 in order to strengthen the coparcenery rights of the
Consequently Section 23 of the 2005 (Amendment) Act was omitted to
confer all daughters (including married daughters) the same rights as sons to reside
in or seek partition of the parental dwelling house
. By deleting Section 23 of 1956
Act, the amending Act (2005) removed the last remnants of discrimination against
women. The objective of the section is to prevent the fragmentation of a family
dwelling house at the instance of a female heir to the prejudice of the male heir
This section reflected one of the ancient Hindu law tenets that treasured the dwelling
house of the family an impartible asset
. By the omission of section 23, the
daughter can remain a daughter forever and she will not lose her relations with her
natal family even after marriage.
the male heirs agree to divide their shares in the house. Several scholars viewed this section as
discriminatory as it provided male heirs with absolute right to seek partition, while making right
of female heirs contingent on the right of male heirs. The expression until the male heirs choose
to divide their respective share there in perpetuates the ancient custom of preference of males
over females. It not only debars the female heir to claim partition but also postpone her
substantive right may be till her lifetime.
Report of the Law Commission of India.,2000
Adv..Jagadish Walmik Chavan, “Progress in Hindu Succession Law”, available at:
http://www.lawyersclubindia.com, (Accessed on 19-10-09).
Adv.Mohan.V.“The Hindu Succession (Amendment)Act“ Vol.(2)2 Civil-4.5
TalhaAbdul Rahman and Gantavya Chandra(2005)SCC(J)9
Similarly the Amendment Act (2005) removed the second discrimination
between women themselves on the basis of their marital status. The section was
based in favor of unmarried daughters and granted them the right to residence in the
dwelling house but only till they were unmarried
. It is pertinent to note here the
Supreme Court’s path breaking decision in
Savitha Samvedi v. Union of India
early as in 1997
. It was held that the differentiation based on marital status is
wholly unfair, unreasonable and gender biased, and violates Article 14 of our
Constitution. The eligibility of a married daughter must be placed on par with an
unmarried daughter so as to claim the benefit referred to in the Railway Ministry’s
circular restricting the eligibility of married daughter of the retiring official for
regularization. It is worth quoting the common saying that a son is a son until he
gets a wife; a daughter is a daughter throughout her life. The apex court hence
passed an order issuing direction to the Railway Ministry to grant regularization of
the Railway Quarter in favor of the first appellant, the married daughter.
Deletion of Sections 4(2) and 23 of HSA 1956
The omission of Section 4(2) of The Hindu Succession Act 1956 is another
achievement of the 2005 amendment Act
. By the deletion of Section 4(2) of The
Hindu Succession Act 1956, a highly discriminatory clause of the Hindu Succession
Act 1956 has been removed. Now woman also has inheritance rights over
agricultural lands just as men. The third achievement of the Amendment Act 2005
(The Hindu Succession Act) is the omission of Section 23 of the 1956 Act thereby
giving all daughters (married or not) the same rights as sons to reside in or seek
Suchita Saigal Bangalore, ‘Dwelling Houses, A Compromise on the Rights of the
(1996) 2 SCC 380
note 26 at 15
partition of the family dwelling house. Section 23 denied residential rights to
married daughters in their parental home. Unmarried daughters are given residence
rights but could not demand partition. The 2005 Act also deleted Section 4 of 1956
The Hindu Succession Act which barred certain widows of predeceased sons, from
inheriting the deceased’s property, if they had remarried. Now the disability is
removed and they can also inherit
An analysis of the Courts’ verdicts would reveal that the courts have also
favored the patriarchal concept of male preference over females in the matter of
dwelling house. The Kerala High Court held that as long as male heirs whether
alone or in plurality choose to live in the dwelling house, female heirs are not
entitled to seek partition
. Again the Madras High Court held that when there is
just one male heir, the female’s heirs cannot seek partition until that male heir
decides to do so. The court added further that in such a case the right to demand
partition vested in the female heir vide section 23 of the Act would be permanently
postponed and ultimately frustrated. Such contingencies would cause great hardship
to the female heirs, but cannot be avoided
according to the Bombay High Court
the section becomes defunct when there is only a single male heir, as the property
ceases to be a joint family property.
It is strange to see that the Supreme Court refused to declare it as
unconstitutional in spite of the discrimination on the basis of sex. It was quite
obvious that the female heir just because of her being female heir is not allowed to
(1981) HLR 594, (Kerala) pp.599-600.
AIR 1980 Mad.243
(1996) 3 SCC 644
claim part it ion
. Even though grave injustice has been done to woman and a
Section that was enacted to empower them has in fact been used to subjugate them.
In spite of the liberal opinions expressed by various High Courts, the Supreme Court
Narasimha Murthy v. Susheelabai
declared that though in the words the male
heirs choose to divide their respective shares suggest that at least two such male
heirs must exist and decide not to partition, the dwelling house in which the right of
the female heir is postponed and kept in abeyance until the male heir or heirs of the
Hindu intestate decides to partition it, it does not necessarily lead to the only in
evitable conclusion that the operation of Section 23 must stand excluded in the case
of Hindu intestate leaving behind his/her surviving only a son and a daughter.
It is pertinent to note here that the Honorable Supreme Court took note of
the hardships of only the male heirs’ claim partition. It failed to see the opposite
side. The consequence of this ruling is that a woman cannot claim partition of the
property that belongs to her even if she wants to live separately. The patriarchal
Court refused to declare it as unconstitutional despite the discrimination on the basis
of sex female heir is denied the right to claim partition because of her gender alone.
A section that was enacted to empower them has in fact been used to subjugate
Several scholars contended that Section 23 was per se discriminatory as it
provides male heirs with the absolute right to seek partition while making right of
female heirs contingent on the right of male heirs. The object is to prevent the
fragmentation of a family dwelling house at the instance of a female heir to the
Ajai Kumar,“Gender Injustice Under Section 23 of the Hindu Succession Act 1956’`.129
AIR 1996 SC 1826
prejudice of the male heirs. The ancient Hindu law considered the dwelling house as
unimpartible asset. The Courts are also giving verdicts favoring this strong
The Kerala High Court held that as long as male heirs whether alone or in
plurality choose to live in the dwelling house, female heirs are not entitled to seek
partition. The Madras High Court
has held that when there is just one male heir,
the female heirs cannot seek partition until that male heir decides to do so. The
Court further added that in such a case, the right to demand partition, vested in the
female heir vide Section 23 of the Act would be permanently postponed and
ultimately frustrated. Such contingencies would cause great hardship to the female
heirs, but cannot be avoided. According to the Bombay High Court, the section
becomes defunct when there is only a single male heir, as the property ceases to be a
joint family property.
The 2005 Amendment meticulously carried out the changes that are
recommended by the Law Commission in its 174
. The omission of
discriminatory provisions removed the disabilities of the women in the matter of
inheritance and have been conferred a status equal to that of men as envisaged under
Article 14, 15 and 16 of the Constitution. Moreover when HSA was amended by the
2005 Act it was thought that Hindu women would start litigation claiming their right
in the coparcenery property. As in the case of Christian women only very few
women came forward asserting their rights. So Sheela Devi
was one of them. The
issue before the Court was whether the 2005 Act would supersede the old Hindu
AIR 1980 Mad 243.
Sheela Devi v.Lalchand and Anr
Law? The Court observed that the Parliament with a view to confer right upon the
female heirs even in relation to the joint family property enacted Hindu Succession
Act2005.The State of Andhra Pradesh had already enacted the same provision in
1987 itself. As per the State Act of 1987the daughter acquires right by birth in the
Joint Hindu Family governed by Mitakshara Law.
Again in Sekar v.Geetha & Ors
the Supreme Court made it clear that the
Parliament intended to achieve the goal of removal of discrimination not only as
contained in Section 6 of the Act but also conferring an absolute right to a female
heir to ask for a partition in a dwelling house wholly occupied by a joint family as
provided for in terms of Section 23 of the Act. It is also apt to look into the
observation made by the Orissa High Court in
Pravat Chandra Patnaik
and Ors v.
Sarat Chandra Patnaik & Ano
In the instant case the Court highlighted the
intention of enacting the 2005 Act. The Court observed that it is to remove the
discrimination contained in Section 6 of the Act by giving equal right in the Hindu
Mithakshara coparcenery property as the sons have. So a daughter gets the right of a
coparcener from the date the amended Act came into force i.e.9.9.2005. The Court
also made it clear that a daughter gets the rights of a coparcener from 2005 even
though they might have been born earlier. Thus there is a gradual development in
conferring property rights to Hindu women. However it remains as a paper tiger and
The Supreme Court has said that a daughter’s right to ancestral property does not arise if the father died before the amendment to Hindu law came into force in 2005
According to an Indian Express report, the apex court held that amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have retrospective effect. The father would have to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.
A bench of Justices Anil R Dave and Adarsh K Goel 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 Hindu Succession Act, 1956 did not give daughters inheritance rights in ancestral property. However, the Congress-led UPA government modified this Act on September 9, 2005. Earlier, women could only ask for sustenance from a joint Hindu family.
The only restriction in force after the passage of this amendment was that women could not ask for a share if the property had been alienated or partitioned before December 20, 2004, the date the Bill was introduced. But now the Supreme Court has added this new restriction.
Indian Express says that the apex court ruling overrules some high court judgements which say that the amendment being in the form of a gender legislation, should apply retrospectively for the sake of removing discrimination.
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 taxt itself.
My Conclusion: The recent supreme court decision woman need not be born after 2005 Hindu Succession Amendment Act but covers women born prior to 2005 is laudable but with one defect. on the date of unlike males.implementation of the Act in 2005 women s fathers should be alive.The decision should have been progressive and not regressve whereas males do not suffer from any infirmity women have been out to this hitch ‘defect while inheriting their ancestral property.Gradually the Supreme court is evolving in less gender biased way.Hindu succession law leaving aside its gender bias and patriarchal outlook.I’m of the view progressive legislation can be given retrospective operation.
Secondly by bringing in Uniform Civil code we can eliminate property law bias, Marriage law bias such as triple Talaq and polygamy etc among Muslims and other gender disparities among various other religions in In India.
Please follow and like us: