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Daughter's Right To Ancestral Property: What You Need to Know

Daughter's Right To Ancestral Property: What You Need to Know


Daughter's Right To Ancestral Property: What You Need to Know

Author: Narayani Sepaha Third Year Student, B.A.LL.B., Vivekananda Institute of Professional Studies, GGSIPU, Delhi

In a landmark judgment, recorded on, August 11th, 2020, the Supreme Court expanded on the rights of Hindu women as legal heirs to ancestral property. The court specifically dealt with the interpretation of Section 6 of the Hindu Succession Act, 1956, and its subsequent amendment in 2005, which provided equal rights to daughters in ancestral property.


The Mitakshara School of Law codified as the Hindu Succession Act, 1956 governs the Hindu succession and inheritance of property. The law applies to every person who is not Muslim, Jew, Parsi or Christian by religion. Before the 2005 amendment, the law only recognised males as legal heirs to the ancestral property.

Section 6 of the Act was amended in 2005 to make daughters a coparcener by birth in the same manner as the son. The law also provided the daughters equal rights and liabilities in the coparcenary property as she would have had if she had been a son. The law applies to intestate succession in a personal property where succession happens as per law and not through a will and ancestral property.


Even after the amendment of 2005, ambiguity on various cases surrounding two significant issues remained, these were:

· Whether the law applied retrospectively, and

· Whether the living status of the father has any effect on the rights of the daughters to inherit the property

Over the years, different benches of the Supreme Court had sided with conflicting opinions on the issue, which were followed by the lower courts, as binding precedents. In 2015, a two-judge bench headed by Justice A K Goel, in the matter of Prakash v Phulwati held that the benefit of the 2005 amendment would be granted only to living daughters of living coparceners as on September 9th, 2005, when the amendment came into force.

Contrary to this, in 2018, yet another two-judge bench, headed by Justice A K Sikri, held that as per the 2005 law the share of the father who died before the amendment would also pass to his daughters as coparceners during the partition of the property.

These conflicting views provided by benches of equal strength led to a reference of a three-judge bench to preside over the current case. The three-judge bench headed by Justice Arun Mishra ruled that a Hindu women's right to be a joint heir to the ancestral property is by birth. It does not depend on the living status of the father or the date of the amendment of 2005. "Since the coparcenary is by birth, the father doesn't need to be living as on 9.9.2005," the ruling said. The Hindu Succession Act (Amendment) 2005, granted Hindu women the right to become joint legal heirs or coparceners in the same manner a male heir does. Asserting that this right under Section 6 of the Hindu Succession Act, 1956, is acquired by birth, the bench, comprising Justices Arun Mishra, S. Abdul Nazeer, and M.R. Shah, observed, "The provisions contained in 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 a son with same rights and liabilities."

The court, while addressing the current case, looked into the rights of the coparcenary under Mitakshara law. Section 6 of the amended act creates an unobstructed heritage or a right by birth; hence it cannot be limited by the living status of the coparcener when it is operationalised. Also, it was noted that earlier Section 6 created statutory friction of partition leading to ambiguity on the issue to ascertain the rights of a man's surviving female relatives, after his death. The court has now opined that the new provision will be applied in any pending cases, irrespective of any such statutory friction created before the 2005 amendment.

Further, it was held that a plea of an oral partition would not be legally acceptable. However, it may be permissible, under exceptional circumstances backed with public documents. It was argued that the need for a registered partition deal was not compulsory, but the court held that the 2005 amendment intends to ensure that the daughters of the coparceners are not deprived of their rights. "The court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on an unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognised under section 6(5)," it observed.

The Supreme Court also commented on the several appeals and suits looking in the same issue across the country that is pending before high courts and other subordinate courts.

"The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by section 6," the top court said while requesting its subordinate courts to decide on all pending matters, possibly within six months.

Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.