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Retrospective applicability of the amendment to the Hindu Succession (Amendment) Act, 2005

In a landmark judgement the Supreme Court, on August 12, 2020, ruled that the 2005 amendment of The Hindu Succession Act, 1956 granting daughters an equal right in paternal property will be applicable retrospectively and irrespective of whether the father was alive or not at the time of the amendment. The said amendment further takes care of the discrimination between married and unmarried daughters.

Prior to 2005, The Hindu Succession Act did not recognize daughters as coparceners having equal right over coparcenary properties as the sons. The 2005 amendment substituted Section 6 of the Act, in an attempt to bring forth the constitutional objective of equality, recognized daughters’ equal rights and liabilities in coparcenary properties.

Since the amendment, there had been an ambiguity on whether it was necessary for the father to be alive when the amendment was brought in, for the daughter to be entitled to the property. The ambiguity was birthed when the Supreme Court in Prakash v Phulavati held that the amendment had no retrospective application and it was certainly not applicable if the father coparcener had died prior to the amendment. The decision of the Supreme court in Vineeta Sharma v. Rakesh Sharma, yesterday, pointed out that the interpretation of the Court in Prakash v Phulavati was and the amended Act will be applicable retrospectively.

The Supreme Court judgement from Tuesday is a giant leap towards equality and upliftment of women’s rights. This judgement realizes the true intent and spirit of the 2005 amendment, which was to bring parity in the rights of daughters and sons. The judgement in Prakash v. Phulavati was right on one account, that is, the female successor must be alive on the date the 2005 amendment came into force in order to claim coparcenary rights. Apart from this, the verdict in this case was overruled by the Court.

In a Joint Hindu Family governed by the Mitakshara law, the property that is inherited or passed down is by way of familial descent. Such inherited property is held jointly, and the 2005 amendment was an attempt to deem the successor’s right to succession to unobstructed heritage. Property in which a person acquires an interest by birth is called unobstructed heritage, the nomenclature is such because the accrual of the right to it is not obstructed by the existence of the owner. It is apparent that unobstructed heritage takes place by birth,and the obstructed heritage takes place after the death of the owner. As the right given under Section 6 is unobstructed heritage, it is not dependent on the father’s death, the right accrues by birth.

By giving retroactive application, the Supreme Court highlighted that the claims which were settled could not be brought up again and fixed a cut-off date of December 20, 2004, to avoid reopening of any settlement or partition decree prior to this date. But since only a coparcener in Hindu family law has a right to seek partition, if a daughter seeks partition or a share, the same cannot be denied on the basis of an oral family settlement but only by a final decree of a court or a registered family settlement. If an oral settlement is to be presented in exceptional circumstances, it mustbe supported by public documents.

With this provision in place, any suit for partition awaiting final decree has to be disposed off in accordance with these norms set out in this judgement. The Supreme Court also lays down the provisions of Limitation Act that is applicable for female successors to claim the benefits from the 2005 amendment and points out that some may already be time barred. Any pending suit on this matter must be disposed off within 6 months following the parameters laid down in this judgement.

The judgement makes an attempt to removes the remnants of gender bias within the legal system that governs Hindu Succession and aims to provide anequal footing for women. By upholding the rights of daughters to be treated equal as sons, the court extends women the respect and right due to them. Daughters right over parental property cannot be denied merely because the father died prior to the amendment, this puts a substantial number of people at a disadvantage and takes away what is rightfully theirs over a technicality.

The judgement is indicative of a facelift in women’s rights being recognized and equality as a constitutional and fundamental right being upheld in gender issues.

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