Supreme Court sets 2005 cut-off on women right to ancestral property

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.

Written by Utkarsh Anand | New Delhi | Published: November 2, 2015 3:54 am
supreme court, women right, hindu law, property rights, women right to ancestral property, Hindu Succession (Amendment) Act 2005, indian express Supreme Court of India

In a ruling that will restrict the right of women seeking equal share in ancestral property, the Supreme Court has 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.

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The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005.

The apex court judgment has now added another disqualification for women regarding their right of inheritance. Until now, they could not ask for a share if the property had been alienated or partitioned before December 20, 2004, the date the Bill was introduced. This judgment makes it imperative for the father to have been alive when the amendment came into force.

Settling the law in the wake of a clutch of appeals arising out of high court judgments, a bench of Justices Anil R Dave and Adarsh K Goel recently 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 bench overruled the view taken by some high courts that the amendment being a gender legislation that aimed at according equal rights to the daughter in ancestral property by removing discrimination, should be applied retrospectively.

Interpreting statutory provisions, 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 text,” it said.

Further, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent, noted the court, adding “even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature”.
About applicability of the amendment to the daughters born before it was brought, the bench held that the new law would apply irrespective of the date of birth.

“All that is required is that the daughter should be alive and her father should also be alive on the date of the amendment,” it said.
The court also held that alienation of ancestral property, including its partition, which may have taken place before December 20, 2004, in accordance with the law applicable at that time, would remain unaffected by the 2005 amendment, and those partitions can no longer be reopened by daughters.

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  1. R
    R. J. Kurien
    Aug 22, 2017 at 10:41 pm
    Is there a new or amended Indian Christian succession act?
    1. Sekhar Bhattacharya
      Aug 13, 2017 at 12:34 pm
      Is this law applicable in West Bengal calcutta -or calcutta Wst Bengal has a different law???
      1. Sekhar Bhattacharya
        Aug 11, 2017 at 1:43 pm
        My father and mother both died before 2001,the propert is on Mothers name ,in this case Can married Daughters married before 1980 can have any succession rights to the property??
        1. V
          Aug 2, 2017 at 12:24 pm
          my father died on 3rd april 1987 , our property is not diveded still , i have 2 sisters can they get equal share in our property.
          1. R
            Rinchen p gyaltsen
            Jun 29, 2017 at 7:30 pm
            My mother has 6 sisters and 1 only brother their ancestors property is around 450 acres agriculture land. My g father died in 1988 that time without any will or property distribution. Now 90 ancestor land is in my uncles name. Do my mother and sister have right to claim their ancestors property.
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