Many people that I meet still ask me whether they have a share in their forefather’s property, over 10 years after the Parliament guaranteed them an equal right in the ancestral property.
The Hindu Succession Act, 1956 was amended in year 2005[1] making women, coparceners in the Hindu Joint Family. A coparcener is someone who shares equally with other members in the inheritance of a Hindu undivided estate. The 2005 Amendment to the Hindu Succession Act has only two riders against women from getting an equal share in their ancestral property. The two riders were: (i) if a partition of the Hindu Undivided Family had taken place before 20/12/2014, and if that partition was duly registered; and (ii) a court decree had reached a finality as to the rights of the members of the Hindu Undivided Family before 20/12/2014. If the two scenarios were satisfied, women, then did not have a coparcenary right in their ancestral property under the 2005 Amendment.
This amendment opened doors to women in India to their ancestral property like never before. Women started asserting their rights in the Court of law seeking what they perceived to be their rightful share in their ancestral home. Thousands of lawsuits were filed, and wherever they could establish the joint family status, women succeeded. Law seemed settled across the country that women had an equal right, title, and interest in their forefather’s property.
In 2015, the Hon’ble Supreme Court of India in Prakash & others vs. Phulavati & others, brought about a change in the interpretation of the Hindu Succession Act, which might affect the rights of the women members in the family. Much has been written over the effect of Phulavati on Coparcenary rights of women, but what is it all about?
In Phulavati, the plaintiff filed a suit in the year 1992 for partition and separate possession of the ancestral property. The plaintiff claimed that the properties under dispute were acquired by her father (who had died in the year 1988) through inheritance, and some of them were purchased by him on his own. When the plaintiff filed the suit, she sought share in her father’s self-acquired property alone.
With the 2005 amendment to the Hindu Succession Act, the plaintiff amended her claim to include the ancestral property as well, and sought equal share in the entire property. The Hon’ble High Court of Karnataka agreed with the plaintiff, and decreed the suit in her favor holding that the plaintiff was entitled to a share in her ancestral property.
The defendants appealed to the Supreme Court contending that the 2005 Amendment was not applicable to the claim of a daughter when her father, who was a coparcener in the joint family had died prior to 9th September 2005. The Supreme Court noted that the text of the amendment itself clearly provides that the right conferred on a daughter of a coparcener is “on the and from the commencement of Hindu Succession Act. In other words, the Supreme Court held that the “rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005, irrespective of when such daughters are born.” Accordingly, the Supreme Court set aside the Karnataka High Court’s order granting rights to the plaintiff in Phulavati.
With this, the law of the land is that women have equal rights in their ancestral home only if their father were alive as on September 9, 2005.
Now, in 2015, there was another confusion after the Union Government repealed the 2005 amendment to the Hindu Succession Act. In Lokamani & others vs. Mahadevamma & others, the High Court of Karnataka was tasked with deciding the effect of repeal of the 2005 amendment. The High Court noted that on 13/05/2015, the Parliament repealed whole of the 2005 amendment. The appellants in Lokamani, argued that the with the 2015 repeal, Section 6 of the Hindu Succession Act, 2005 amendment has been repealed, with that the old Section 6 has been revived, which did not give equal rights to women.
The High Court rejected this argument finding that as follows:
“Repealing and Amending Act, 2015 does not disclose any intention on the part of the Parliament to take away the status of a coparcener conferred on a daughter giving equal rights with the son in the coparcenary property… On the contrary, by virtue of the Repealing and Amending Act, 2015, the amendments made to Hindu Succession Act in the year 2005, became part of the Act and the same is given retrospective effect from the day the Principal Act came into force in the year 1956, as if the said amended provision was in operation at that time.”
The High Court noted that the Repealing and Amending Act was not enacted to bring in any change in the law, but to remove enactments which have become unnecessary. In other words, Repealing and Amending Act, 2015 only expurgated the Hindu Succession (Amendment) Act, 2005, and not the law, which gave equal rights to women in their ancestral property.
[1] Prior to the 2005 amendment, having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The 2005 Amendment came into effect on 9th September, 2005. Pursuant to Section 6 of the Hindu Succession Act, post amendment, women became equal shareholders in the joint family property.
