Whether Married daughters born before 2005 have equal rights on ancestral property?

Bombay High Court: In a landmark judgment, a full bench comprising of  Mohit Shah CJ, MS Sanklecha and MS Sonak, JJ. held that the daughters alive on September 9, 2005 would be entitled to equal rights in ancestral property. Earlier, a division bench in the case of Vaishali S. Ganorkar vs. Satish Keshavrao Ganorkar 2012 (5) Bom CR 210 had upheld the prospective operation of the  Hindu Succession (Amendment) Act, 2005 which in effect disentitled all daughters born before 9 September 2005 to claim their equal interest in the Joint HUF. A single bench comprising of RG Ketkar, J. disagreed with the decision of the Ganorkar case and concluded that the amended Section 6 had retrospective effect from the date of the enactment of the Principal Act and is applicable to all daughters who are born before or after 2005 as a daughter becomes a coparcener in her own right by  her birth itself.  When the matter was referred to this Court, the Court agreed with the decision of Justice Ketkar.

The Court clarified that in case the coparcener had died before 2005, then the pre-amended law was applicable but by passing of the Amendment Act, 2005 all daughters who are alive ipso facto become coparceners, thus settling the interpretation of the amended Section 6. The Court observed that the only requirement was that when an Act was being sought to be applied, the person concerned must be alive as the Legislature had specifically used the word ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005.  This was done so as to ensure that rights which are already settled are not disturbed by virtue of person claiming as an heir to a daughter who had passed away before the Amendment Act came into force.

The Court also denied the reference of the Sheeladevi judgment, clarifying that  principle laid down  in  Sheeladevi vs. Lalchand  (2006) 8 SCC 581 that the Amendment Act of 2005 is prospective and would have no application where succession opened prior to the Amendment Act of 2005 coming into force, does not militate against the view taken by them. The Amendment Act of 2005 applies to a daughter of coparcener who is born before 9 September 2005 and alive on 9 September 2005, on which date the Amendment Act of 2005 came into force, and obviously there is no dispute about the entitlement of daughter born on or after 9th September 2005. [Badrinarayan Shankar Bhandari vs. Omprakash Shankar Bhandari, Second Appeal No. 566 of 2011, decided on August 14, 2014]
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Citation; 2014(5) MHLJ434,2014(4) ALLMR846 FB

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