Coparcenary property – Right of daughters – Section 6 as amended by Amendment Act (2005) is available to all daughters living on date of coming into force of 2005 Amendment Act : Hindu Succession Act, 1956:

The Full Bench of the Bombay High Court held that the provisions of amended section 6 are retroactive in operation, and daughters living on 9th September, 2005 get rights in coparcenary property with effect from 9th September, 2005.

The Amendment Act applies to daughters born any time provided the daughters born prior to 9th September, 2005 are alive on the date of the coming into force of the Amendment Act i.e., on 9th September,2005. There is no dispute between the parties that the Amendment Act applies to daughters born on or after 9th September, 2005.

A bare perusal of sub-section (1) of section 6 would, thus, clearly show that the legislative intent in enacting clause (a) is prospective i.e. daughter born on or after 9th September, 2005 will become a coparcenary by birth, but the legislative intent in enacting clauses (b) and (c) is retroactive, because rights in the coparcenary property are conferred by clause (b) on the daughter who was already born before the amendment, and who is alive on the date of Amendment coming into force. Hence, if a daughter of a coparcener had died before 9th September, 2005, since she would not have acquired any rights in the coparcenary property, her heirs would have no right in the coparcenary property. Since section 6(1) expressly confers right on daughter only on and with effect from the date of coming into force of the Amendment Act, it is not possible to take that view of the heirs of a deceased daughter would get such a right.

On examination of amendment section 6 of the principal act and bearing in mind the words ‘on and from commencement of the Hindu Succession Act, 2005 found in section 6’, it must follow that the rights under the amended section 6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act, 2005. Therefore, it is imperative that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. It would not matter whether the daughter concerned is born before 1956 or after 1956. This is for the simple reason that the Hindu Succession Act, 1956, when it came into force applied to all Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for application of the Principal Act. The only requirement is that when the Act is being sought to be applied, the person concerned must be a existence/ living. The Parliament has specifically used the word “on and from the commencement of Hindu Succession(Amendment) Act, 2005″ so as to ensure that rights which are already settled are not disturbed by virtue of a person claiming as heir to a daughter who had passed away before the Amendment Act came into force.