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Females As A Coparcener: Whether The Amendment Is Prospective Or Retrospective In Nature?

The Hindu Succession (Amendment) Act, 2005 as raised several issues with its nature which leads to the question as to whether this amendment act is retrospective or prospective. The issue such as in the case where the succession has already opened prior to the amendment, will this amendment be applied on those cases, if yes, then is its nature retrospective in nature.

Moreover, the amendment states that the daughter will be a coparcener by birth, so will her share go back to the date of her birth which is prior to the amendment act, if yes, then again is the amendment retrospective in nature. However, the amendment also states that the partition or severance of status taken place before 20th December 2004, would not affect the daughters right to claim her share as a notional partition, therefore, the daughter cannot ignore such partition and claim her share as a coparcener, thus, again is the amendment retrospective in nature in such cases.

Moreover, before the amendment of the act, there were several state laws such as Karnataka Hindu Succession Act, 1990 which gave equal rights to daughters in coparcenary property, so what will be the effect on such state legislated act.

Prospective or Retrospective:
These controversies arising out of the amendment has been resolved by several judges in the court to decide its nature which put rest to all these issues by clearly specifying that it is prospective in nature through their logical reasoning on the interpretation of the provisions of the amendment.

The controversy of whether the amendment is retrospective in nature in the cases when the partition has been taken place prior to the amendment act has been resolved in the case of Ganduri Koteshwaramma v. Chakiri Yanadi [1], in which the appellants are the unmarried daughters of Chakiri Venkata Swamy, and the respondent has filed a case for partition in the Joint family Property of their mother in the year 1993.

The trial court has on march 19, 1999, held the preliminary decree that the respondent is entitled to his share of the Joint family property along with his father and brother. However, on September 27, 2003, the preliminary decree was amended that the two unmarried daughters are also entitled to this joint family property. The amendment in Hindu succession act came into existence. Thus, the appellants filed an application to pass a final decree in their favour with regard to the disputed joint family property.

The issue before the bench was whether the preliminary decree and amended decree passed by the trial court deprives the two unmarried daughters the benefits of amendment though the final decree has not yet been passed. The Supreme Court held that the partition has not been disposed off before 20th December 2004, as the preliminary decree only shows the determination of shares of the members in the property which was also amended in 2003.

It is only by the final decree that the joint family property is partitioned through metes and bounds because between this period there will be circumstances and events which occurs and changes the shares. Therefore, the court can amend the preliminary decree to predetermine the rights and shares of the members. Thus, to give effect to the partition after 20th December 2004, an application has to be made by the daughters before the final decree is passed as to claim their share in the property.

Moreover, also in the case of Bhadrinaryan Shankar Bhandari v. Omprakash Shankar Bhandari, the Bombay High Court stated that if the partition between the father and son has been done prior to 20th December 2004, then it is a valid partition under the law existing and the amendment will not allow the daughter to claim her equal share.[2]

This is because there has been a partition and the father is not a coparcener in that family as he has become a co-owner, thus, the daughter is not a daughter of a coparcener and cannot claim her equal share which can disturb the partition that has already taken place. Thus, from the above cases, the amendment act does not have retrospective nature because it does not affect the partition that has already taken place prior to the amendment by stating that the daughter cannot claim her equal share in such Joint Family Property.

On the controversy that Daughter will be a coparcener by birth, so will her share go back to the date of her birth which is prior to the amendment act, if yes, then again is the amendment retrospective in nature. This has been resolved in the case of Danamma @ Suman Surpur & Another v. Amar & Others,[3] in which the appellants are the married daughters, and the respondent is a son of one of the coparceners, who had filed a suit for partition of the Joint Family Property acquired out of the death of the father of appellants in the year 2001.

The respondent contended that the appellants are the married daughters and are not coparceners as they were born prior to the enactment of the Hindu Succession Act, 1950. On the contrary, the appellants contended that they are entitled to the share as their father died after the enforcement of the act and also, they are coparcener under the amendment made in 2005. However, the trial court held that the appellants are not entitled to any share in the property as they were born prior to the enactment of 1950 act and also rejected the contention of having a share under the amendment. This was also upheld by the High court.

The question of law before the Supreme Court was whether the two married daughters be denied their share on the basis that they were born prior to the enactment of the Act and even though with the passing of Hindu Succession Amendment Act, the appellants would not become coparcener by birth and therefore should not be entitled to an equal share as that of the son?

The court held in the issue of the right of daughter being born prior to the enactment of the act that for the purpose of the undivided interest of the deceased coparcener, if he dies leaving behind female relative in class I heir then it will devolve upon his heirs and not by survivorship. The undivided interest will be ascertained through the Explanation 1 to Section 6 of the Act which provides a notional partition, and which includes the female relatives and the surviving coparcener. Thus, the daughters will be entitled to share in the Joint Family property even though they were born prior to the enactment of the act.

Moreover, on the issue of whether the daughters who are born after the commencement of the amendment act will have the right as a coparcener to claim an equal share in the property or is also conferred upon those daughters who are born prior to amendment. The court held that "the right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener"[4].

Therefore, the court took the amendment as a prospective nature and upheld that the daughter is entitled to an equal share in the Joint Family property even though she was born before the amendment or even before the enactment of the act. The only condition that is to acquire her share is that she has to be alive to claim her share.

This Court also emphasized and relied on the case Prakash and Ors v. Phulvathi and Ors,[5] which found that the only precondition in which the daughter can claim her share is that she and her father had to be alive on the date of the amendment act of 2005 came into force. The reasoning given by the court was that if the father had died before the amendment of the act, the succession have already been opened and his interest have already been vested in the legal heirs under the existing law and the intention of the lawmakers is not to affect such succession and apply the amendment retrospectively. Thus, the position of the daughter will be same irrespective of when she was born but the partition would provide her the notional partition on the death of her father.

On the issue as to effect on the several state laws such as Karnataka Hindu Succession Act, 1990 which gave equal rights to daughters in coparcenary property. This equal right of daughters has been at the earliest taken up by virtue of state laws such as Andhra Pradesh, Tamil Naidu, Karnataka and Maharashtra. Therefore, the controversy arises as to effect on such state laws with respect to amendment brought up by the central government.

This also has been resolved in the case of Phulvathi and Ors,[6] and the court as held previously that the amendment is not meant to disturb the settled rights which are already vested under the existing laws. Therefore, the rights of daughters to be treated as coparceners by virtue of the state laws will not be taken away by the amendment of 2005. However, after the enforcement of the amendment act, these states will be governed under the Central Amendment Act.

Conclusion:
Through the amendment the gender discrimination has been excluded by giving coparcenary rights to the daughter by birth and has given a huge platform for interpretation of several issues involved in it. The courts have played its role of determining the nature of the amendment being prospective and wiped out more problems of equality arising out of it.

The legislative steps and the amendment of 2005 have not only removed the gender discrimination but also recognized the importance of women in Joint Family Property in the growing society were women has huge role in family as well as in economy.

Moreover, along with providing rights to women all over India the court has also upheld the rights of women who were already having rights in coparcenary property in several states as it mandates it to be in harmonious construction with the central government amendment. Thus, the effect of Amendment has changed the traditional custom of coparcener and brought an importance of women in the family.

End-Notes:
  1. A.I.R 2012 SC 169
  2. A.I.R. 2014 BOMBAY 151
  3. (2018) 2 SCC 343
  4. Ibid
  5. 2015(6) Kar L J 177
  6. Ibid

Suggested Articles on Female Coparcenary:

  1. Female Coparcenary -A Review of Law
  2. Female as Karta

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