Introduction of 2005 Amendment
Keeping the aforesaid position of Hindu Law, in its 174th Report (May 2000), the Law Commission of India was of the view that the gender reforms were called for to ensure equality. The Commission noted the fact that in various States such as Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka, attempts had already been made to bring about the gender equality. But all these States, except Kerala, while conferring coparcenary rights on daughters also denied such rights to daughters married prior to State Acts coming into force. The Law Commission recommended that the daughter should be made coparcener by birth and that she should be entitled to get a share on partition and/or on the death of the male coparcener. The Commission also recommended that a daughter who is married after the commencement of the Amendment Act, should be entitled to a share in the ancestral property as she has already become a coparcener prior to her marriage. One more recommendation of the Law Commission was to do away with the erstwhile Section 23 of the Principal Act which provided that a woman would have a right to stay in the family house as a member of the joint Hindu Family but unlike a male, she would have no right to demand a partition of the family house. The Commission recommended that she should have rights equal to the male in respect of a family house. Thereafter on 9th September, 2005, the Amendment Act, 2005 came to be passed as Act 39 of 2005. Section 3 of the Amending Act substituted erstwhile Section 6 of the Principal Act. The Amendment Act, 2005 did away with exclusion of married daughter from getting the benefit of the amendment and also added a proviso to Section 6(1) of the Principal Act saving partitions done prior to 20th December, 2004 (the date of introduction of the Bill in Rajya Sabha). The Explanation to Section 6(5) of the Principal Act provided that for the purposes of the Section 6 of the Act partition only means partition by registered document or decree of Court.
Section 6 of the Hindu succession Act
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 in 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 sub¬-section (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 pre-deceased 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 son 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 recognise 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.
For the purposes of clause (a), the expression 'son', 'grandson' or 'great-grandson' 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.
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 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary.
Married Daughters Share in Ancestral Property post 2005 Amendment
A Daughter who is married prior to the 2005 amendment is not entitled to a share in the Ancestral Property. The 2005 amendment is prospective in nature. On an examination of amended Section 6 of the Principal Act and bearing in mind the words 'on and from commencement of the Hindu Succession Act, 2005' found in Section 6, it must follow that the rights under the amended Section 6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act, 2005. In the judgement Kishore Morarji Bhojraj and Ors. Vs. Jaya Hiranchand Karani and Ors. states 'It is however clear from the provisions of law set out before that neither Defendant No. 1, a daughter of Morarji and Champaben, and who married in 1959, nor Nalini who married in 1964, would have had any rights to that property. They would not have received any part of the sale consideration but for the incorrect premise and understanding on which all proceeded. Anju, Defendant No. 2, is the daughter of Nalini, and Defendant No. 3 is her father. If Nalini herself could not have received a share, Defendants Nos. 2 and 3 could not have succeeded to any such share either. None of the Defendants would receive this as coparceners in the HUF but only as inheritance from Champaben'. In the judgement Kachru and Ors. Vs. Parighabai , Parigabai who was the real sister of Kachru got married prior to the 2005 amendment claimed a Share in the Ancestral Property . It was held since the marriage of Parigabai took place prior to the 2005 amendment she was not entitled to a Share in the Ancestral Property. She was only entitled to claim a share inherited via her Parents in the HUF Properties. A different view has been taken in the judgement Leelabai Vs. Bhikabai Shriram Pakhare where it has been held that even though the daughter i.e. respondent was married before 1994 and the parents died well before coming into force of the new section 6, the respondent would acquire equal rights in the coparcenary property only by virtue of her birth in the Hindu joint family, undisputedly governed by Mitakshara Law, in the same manner as the son and would have the same rights in the coparcenary property as she would have had, if she had been a son. That means the right of the respondent as a coparcener, equal in status and effect as that of a son, would have to be understood as having arisen on the date on which she took birth and, therefore, she would be entitled to claim her equal share in the coparcenary property from that date, unless the property has lost its character as a coparcenary property by disposition or alienation made before 20-12-1994, as contemplated in proviso to sub-section (1) of section 6 read with sub-section (5). In the instant case, there has been no disposition or alienation including any partition or testamentary disposition as contemplated under section 6(1) read with sub-section (5) before 20-12-2004having taken place and, therefore, the respondent would have equal share in the coparcenary property and would be entitled to even re-open the notional partitions, which are not covered under the Explanation to sub-section (5) of section 6.
Married Daughters Share in her Fathers Property Post 2005 Amendment.
A married Daughter is entitled to claim a share in her Fathers Properties irrespective of her being born or married prior to the 2005 amendment provided the partition has not being effected before 20th December 2004. In the judgement Prakash & Ors v Phulavati & Ors. it was held that the rights under the Central amendment are available to living daughters of living coparceners as on the date of enactment of the Central Amendment,i.e.,9th September 2005, irrespective of their dates of birth. Dispositions or alienations, including partitions, before 20th December 2004 in accordance with the law applicable before that date remain unaffected. In the judgement Badrinarayan Shankar Bhandari and Ors. vs Omprakash Shankar Bhandari it was held that , Amended Section 6 applies to daughters born prior to 17th June, 1956 or thereafter (between 17th June, 1956 and 8th September, 2005), provided they are alive on 9th September, 2005 that is on the date when the Amendment Act of 2005 came into force. In the judgment Poonam and Ors. Vs. Fulchand and Ors. it was held that perusal of Section 6 of Act shows that daughter of coparcenary would get birth right in coparcenary property in same manner as son would get.There was virtually no difficulty in applying this law where daughter was alive and coparcenary property was available to her for demanding share in it . Roved properly then, daughter of coparcenary would not seek partition of coparcenary property .Therefore, Appellant/Plaintiffs were entitled to equal share with that of their brothers in their fathers property.
2005 Amendment whether Prospective or Retrospective.
The 2005 amendment has been held to be Prospective in nature in various Bombay High Court and Supreme Court Judgments. Under Section 6 of the Hindu Succession Act the Commencing words on and from commencement of Hindu Succession Amendment Act, 2005 proved that the Act is prospective in operation. In the judgment Badrinarayan Shankar Bhandari and Ors. vs Omprakash Shankar Bhandari it has been held that Section 3 of Act stood substituted with effect from specified date .It could not be said that Section 6 of Act related back to specified date when Principal Act came into force . The Commencing words on and from commencement of Hindu Succession Amendment Act, 2005 proved Act was prospective in operation . Certain clauses in the Act proved that operation of Act was not retrospective but prospective . Therefore Appellants failed to prove that the operation of the Act was retrospective in nature. In the judgement , Prakash & Ors v Phulavati & Ors it was held that in view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. On this finding, the view of the High Court cannot be sustained. The Contention of the Respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act.