The Supreme Court held that daughters have equal rights in the Ancestral property, even if they were born before the enactment of Hindu Succession Act, 1956.
The Apex Court on 01.02.2018 in the matter Danamma @ Suman Surpur & Anr. Vs. Amar & Ors. (Civil Appeal No. 188-189/2018) held that the courts below erred in holding that daughters were not entitled to share in property, as they were born before 1956, the year of enactment of Hindu Succession Act.
Whether by virtue of the 2005 Amendment in the Hindu Succession Act 1956, the daughters will get coparcenary right by birth in the ancestral property as sons even if they were born before the commencement of the 1956 Act.
The Apex Court held that “according to Section 6 of the Act, when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act (which includes a daughter), his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the interest of the deceased coparcener would devolve by intestate succession on his heirs, which included his daughters”.
The Court also held that the daughters were entitled to the benefit of 2005 amendment as well, and on that basis also they were entitled to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 the rights under the amendment are available to daughters living on the date of amendment, irrespective of when they were born.
The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener.