The judgment of the Supreme Court [Prakash v. Phulavati, (2016) 2 SCC 36] mentioned by you in your question basically relates to devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law.
What is a coparcenary property? Well, in the case of Sathyaprema Manjunatha Gowda v. CED, (1997) 10 SCC 684, the Supreme Court had earlier held as under:
“…coparcenary is a narrower body than a joint family and consists of only those persons who have taken, by birth, an interest in the property of the holder for the time being and who can enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. Thus while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great-great-grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder.”
Originally, the Hindu Succession Act, 1956, did not give daughters inheritance rights in coparcenary property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on 9 September, 2005. Section 6 of the Hindu Succession Act was amended in 2005, and sub-section (1) of it now provides as under:
“6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
… …”.
While interpreting this new amendment that was brought about on 9 September 2005, the Supreme Court vide its recent judgment in the case of Prakash v. Phulavati, (2016) 2 SCC 36, has held that the said amended provision of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect and that the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings in a coparcenary property of a Joint Hindu family.
The Supreme Court held that:
“The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability.”
“In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment.”
The Supreme Court thus held that the rights under the amendment are applicable to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters are born.
However, as mentioned above, the aforesaid amendment and the above judgment of the Supreme Court are relevant for the purposes of devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law.
In your case, if your question is related to sharing of coparcenary property of the Joint Hindu family, then you may not be able to claim share in such property of your father since he had died prior to 2005.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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