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The first question after the Supreme Court recent ruling in Prakash & Ors v. Phulavati & Ors, rendered on 16 October 2015 comes to everyone’s mind is whether the Supreme Court is right in giving the ruling or not, but what matters now is not whether the Supreme Court is right or not, but whether the daughters who have been waiting to get their right, can still get their right in the ancestral property if their father have expired before the date of the 2005 Amendment Act. The answer to it is a straight NO. Now let me throw some light on what are the rights of the daughters in co-parcenary property before and after the 2005 amendment.

A co-parcenary is a group of male members either by birth or adoption and now (after 2005 Amendment Act, the daughters are also considered as co-parcenars) and coparcenary property is the property which has been inherited intestate by the male member after the death of his father (no matter whether the same property was self acquired or ancestral by the father of the male inheriting, that particular property becomes ancestral to the person inheriting and would be taken as ancestral for their future generation). The Hindu Succession (Amendment) Act, 2005 brought the change in the law creating the right of the daughters (which was not earlier provided to the daughters, as they were not considered as co-parcenars) in the ancestral property and it is only after 9th September 2005 their right have  been created and the sole purpose of the amendment was primarily gender justice i.e. equality of women in the matters of succession and associated property rights and after 2005 Amendment Act section 6(1) of the Hindu Succession Act, 1956 has declared a daughter to be a co-parcenar as a son as the birth right in her own right.

Now the real controversy arose because of the fact that those daughters who were sleeping over their rights in claiming partition under an idea that after the 2005 amendment act there right exist even if their father had expired before 2005 Amendment Act and they can claim partition as and when they feel to claim the share in the property, but the Hon’ble Supreme Court in Prakash & Ors v. Phulavati & Ors, held that a plain reading of the statute (Amendment Act) itself suggests that a daughter has a right in coparcenary property on and from the commencement of the Amendment Act. The SC held that 'An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective'. In the instant case there was no express or intended stipulation which would make the Amendment Act retrospective in its application and by virtue of the Amendment Act, right to coparcenary property would be available only to 'living daughters' of 'living coparceners' on 9 September 2005.

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This present ruling is applicable only in the cases of ancestral property, therefore the daughters can still claim the share in their predeceased father’s property if the same was self acquired (self acquired will include a property acquired qua a Gift or a Will).  

Kapil Chandna Advocate

Practicing in the Supreme Court of India

Advocate.kapilc@gmail.com


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Category Family Law, Other Articles by - Advocate Kappil Cchandna 



Comments

5 years ago Ravi khanna

In the light of recent judgement of 11th Aug.,2020 what would be the status of daughters' right if the inherited property has already been sold before 11th Aug.,2020 but after 20th Dec.,2004 ? I would request the experts their opinion.. Thanks RAVI KHANNA


7 years ago Rudrawar Narayanreddy

The law administered after Prakash Vs Phulavati was as you opined but the same is morally right but legally wrong and against the Ganduri Koteshwaramma case, the plain language of the act makes it clear that the application of the act is retroactive. So Danamma case delivered on 1/2/2018 by apex court restores the right of the daughters giving them coparcenary right relying on Ganduri case.


9 years ago Ravi

I want to important advice from all experts. Sir I have grandfather, grandmother, father,mother, two brother, and two auntie .all are alive only one auntie has been deceased. We have already completed lawsuit settelment of property in civil court between my grandfather, my grandmother,my father,my mother and my two brothers except of my deceased auntie son's.in that lawsuit plaintiffs was my grandfather, my grandmother, my father,my mother,my two brothers defendant was I.this lawsuit has been disclosed by court with Referendum between all family member.that time deceased auntie sons told us we don't want share in ur property only please give us money so u can neglect our names in lawsuit.we gave them money which they want.thereafter we have been completed lawsuit settlement process in civil court successfully. After 1 year My my deceased auntie son's told i want our property share in my grandfather property.we are not ready to give his property share right in my grandfather property because he was already carrying money from us. And he has going to do new lawsuit against completed decree.and he are telling to us i do criminal offense in court for the fraud me and court.So my request is all of u experts please help me and give me ur valuable advice to me. Some questions is in my so please try to give my questions. 1) is right of deceased auntie sons in alive grandfather property which lawsuit settlement has been alrady done when grandfather are alive between all family member only except of deceased auntie son's? 2) can they do criminal offense on us? 3)how can we defend to deceased auntie son's? 4)have any way to solve this matter?


9 years ago Ravi

I want to important advice from all experts. Sir I have grandfather, grandmother, father,mother, two brother, and two auntie .all are alive only one auntie has been deceased. We have already completed lawsuit settelment of property in civil court between my grandfather, my grandmother,my father,my mother and my two brothers except of my deceased auntie son's.in that lawsuit plaintiffs was my grandfather, my grandmother, my father,my mother,my two brothers defendant was I.this lawsuit has been disclosed by court with Referendum between all family member.that time deceased auntie sons told us we don't want share in ur property only please give us money so u can neglect our names in lawsuit.we gave them money which they want.thereafter we have been completed lawsuit settlement process in civil court successfully. After 1 year My my deceased auntie son's told i want our property share in my grandfather property.we are not ready to give his property share right in my grandfather property because he was already carrying money from us. And he has going to do new lawsuit against completed decree.and he are telling to us i do criminal offense in court for the fraud me and court.So my request is all of u experts please help me and give me ur valuable advice to me. Some questions is in my so please try to give my questions. 1) is right of deceased auntie sons in alive grandfather property which lawsuit settlement has been alrady done when grandfather are alive between all family member only except of deceased auntie son's? 2) can they do criminal offense on us? 3)how can we defend to deceased auntie son's? 4)have any way to solve this matter?


9 years ago Geetha.D.Philip

Thank you sir.well explained


9 years ago mukhtar Faluddin Mulla

Dear sir. please give same for Muslim low. if relinquish deed made by brothers.. please provide details .. Mukhtarmulla


9 years ago devi

Sir I have a doubt. Suppose a man had 2 male children while he was alive and his third son was born after his untimely death, does that son get to be a coparcener and inherit like his elder brothers?


9 years ago Ravi khanna

I would still like to know if any larger bench can still overrule its earliar judgement in case of Prakash & others vs Phulawati & others.


9 years ago Ravi khanna

In response to Mr.Vijay Kumar's query I would like to mention that after hon.Supreme Court judgement it is clear that those daughters whether married or unmarried will have no share in ancestral property if their fathers died before 2005


9 years ago VIJAY KUMAR

What will be the amount of share for daughters married before Amendment 2005 and fathers in such case had also died before Amendment 2005 as per pre-amended law?


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