August 12, 2020

‘Right to equality’: Daughters to have share in property: SC

[ by Legal Era News Network ]


In a significant verdict, the Supreme Court on Tuesday held that daughters cannot be deprived of their right to equality, and will have a share in parental property in accordance with Hindu Succession (Amendment) Act, 2005, irrespective of whether the father was alive or not at the time of its enactment.

A bench, headed by Justice Arun Mishra and comprising Justices S. Abdul Nazeer and M.R. Shah, said: “The provisions contained in the substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.”

“Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005,” it added.

“The daughters cannot be deprived of their right of equality conferred upon them by Section 6... Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary, equal to that of a son, in pending proceedings for final decree or in an appeal”, added the bench.

Justice Mishra added: “A daughter is for a lifetime. Once a daughter, always a daughter.”

The Supreme Court said that daughters’ rights are absolute after the amendment, while setting aside earlier decisions that a daughter would have coparcenary rights only if both the father and daughter were alive as on September 9, 2005, when the amendment was notified.

“The object of preventing setting up of false or frivolous defence, to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener,” it added.

The bench observed that the intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition.

“Hence, we request the pending matters be decided, as far as possible, within six months,” added the bench.

Solicitor General Tushar Mehta, representing the Centre, argued that the daughters have been given the right of a coparcener, to bring equality with sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. “The Amendment Act, 2005, is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenary rights on the commencement of the Amendment Act,” he had submitted.

The Supreme Court noted that if a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

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