On 9 September 2005, the Hindu Succession (Amendment Act), 2005 (Amendment Act) came into effect and daughters in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the coparcenary property (being property not partitioned or alienated) of their fathers. Historically, the Hindu Succession Act, 1956 (HSA), did not confer any rights on a daughter to the ancestral property of her father. The Amendment Act fuelled a debate on whether a daughter’s right in coparcenary property was available even prior to commencement of the Amendment Act, i.e. were the rights granted to daughters in the coparcenary property retrospective in their application? The debate on retrospective application of the Amendment Act has now been put to rest by the recent pronouncement of the Supreme Court (SC) in the case of Prakash & Ors v. Phulavati & Ors, rendered on 16 October 2015. SC, in its judgment, has held that the property rights of daughters are prospective in their application, i.e., to be available only if both the father and the daughter are alive on the date of commencement of the Amendment Act (i.e., 9 September 2005).
The main issue for consideration before the SC was whether the Amendment Act is applicable retrospectively. This issue has been subject to divergent and often conflicting positions taken by various High Courts in the past.
In the instant case, Phulavati had filed a suit claiming partition and separate possession of her 1/7th (one-seventh) share in her father’s properties (acquired by inheritance from his adoptive mother). Phulavati’s father passed away on 18 February 1988. While the suit was pending, Phulavati amended her plaint claiming a share in her father’s properties under the Amendment Act. The Karnataka High Court ruled in favour of Phulavati holding that an amendment (in this case the Amendment Act) would be applicable to pending proceedings, even if such an amendment was prospective in its operation (HC Order). This HC Order was challenged before the SC.
The main arguments against Phulavati’s case were as follows:
- Phulavati had a right only in the self-acquired property of her father;
- Phulavati’s father passed away on 18 February 1988, i.e. prior to the commencement of the Amendment Act. Accordingly Phulavati could not be considered to be a coparcener at the time of commencement of the Amendment Act; and
- The Amendment Act would not be applicable in the instant case. Section 6 of the HSA as it stood prior to the commencement of the Amendment Act would apply, which did not recognise daughters’ rights in coparcenary property.
In its judgment, the SC 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.
The HC Order was set aside by the SC. The matter was remanded back to the Karnataka High Court for a fresh decision based on the principle of prospective application of the Amendment Act laid down by the SC.
The SC in pronouncing this judgment has provided the much-needed clarity that the Amendment Act is prospective in its application, i.e., with respect to a Hindu family governed by Mitakshara law, a daughter would have a right in the ancestral property inherited by the father only if both the daughter and the father are alive at the time of commencement of the Amendment Act. No distributions of such properties of persons who passed away prior to 9 September 2005 can be re-opened or questioned by daughters. For the sake of clarity, it may be noted that the position with regard to succession to any self-acquired property (as against coparcenary property) of a Hindu male dying intestate remains unchanged, with the daughter being entitled to a simultaneous share in such self-acquired property as the son (in the absence of a will stating anything to the contrary).