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Right by birth

  • 14 August, 2020

  • 10 Min Read

Right by birth


Supreme Court observations regarding the provisions of the Hindu Succession (Amendment) Act, 2005.

Mitakshara law:

  • Mitakshara is one of the schools belonging to Hindu law dealing with property rights and succession.
  • Mitakshara law is still in practice across most of India except for West Bengal and Assam where the Dayabhaga system is practiced.
  • The Mitakshara is a legal treatise on inheritance, written by Vijnaneshwara, a scholar in the Western Chalukya court in the 12th century.
  • Mitakshara law provides the principle of division of ancestral property held by the Hindu joint family.
  • Partition of such landholding among offsprings is possible even with the father still living, unlike the Dayabhaga system.
  • As per the law, the right to Hindu joint family property is by birth. So, a son immediately after birth gets a right to the property. The Mitakshara School of coparcenary recognizes the birthright of son, son’s son, son’s son’s son.
  • The system of devolution of property is by survivorship. The share of coparceners in the joint family property is not definite or ascertainable, as their shares are fluctuating with births and deaths of the coparceners.

Hindu Succession Act, 1956:

  • The Mitakshara School of Hindu Law was codified as the Hindu Succession Act, 1956.
  • The Hindu Succession Act, 1956 only recognised males as legal heirs.

Hindu Succession (Amendment) Act, 2005:

  • The Hindu Succession (Amendment) Act, 2005 is an amendment to the Hindu Succession Act, 1956.
  • The amended Hindu Succession Act gives daughters equal rights to ancestral property.
  • The Hindu Succession (Amendment) Act, 2005 aimed to remove gender discriminatory provisions regarding property rights in the Hindu Succession Act, 1956 by balancing the property rights of male and female siblings.
  • The Hindu Succession (Amendment) Act, 2005 had a retrospective effect with the provision that partitions or testamentary disposition that had taken place prior to December 20, 2004, would remain valid and unaffected by the change.
  • This led to the interpretation that the daughters’ coparcenary rights, being prospective, would not come into effect unless both the coparcener father and his daughter were alive on September 9, 2005- the date the law came into effect. This interpretation was upheld by the Supreme Court in its 2015 judgment in the Prakash and Others vs. Phulavati case.
  • The Supreme Court has recently held that a Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.
  • The court has recognised that the 2005 amendment conferred equal status as a coparcener on daughters in Hindu families governed by Mitakshara law, and this right accrued by birth.

Significance of the verdict:

  • The decision of the Supreme Court corrects an anomaly in the interpretation of the 2005 amendment to the Hindu Succession Act, 1956.
  • Though the Hindu Succession (Amendment) Act, 2005 took reformatory steps towards ending gender discrimination with respect to property inheritance, the wrong interpretations of its provisions had disabled many Hindu women to claim ancestral property.
  • By locating the origin of the coparcenary right in one’s birth, the SC’s decision has allowed the application of this prospective legislation to be retroactive.
  • The SC judgment has sought to give full effect to the reformatory intent of the Hindu Succession (Amendment) Act, 2005 by setting at rest doubts arising from varying interpretations.

Gender equality:

  • SC’s decision on the coparcenary rights of women is in line with the aim of ending gender discrimination. The judgment helps uphold the daughter’s rights as being equal to that of a son and endorses gender equality.
  • This is in consonance with the right of equality as enshrined under Article 14, 15, & 21 of the Constitution of India.

Source: TH


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