Inheritance laws in India, particularly those governing succession and inheritance among Hindu families, have conventionally been biased towards sons. Under the Hindu law, a property owned is classified as either ancestral or self-acquired. Ancestral property can be defined as the one which is inherited by up to four generations of male lineage and the right to have a share in it is accrued by birth. In the case of a self-acquired property, the father (or owner) has the right to determine who will inherit the property. All legal heirs, including daughters, have an equal share in the property if the father passes away intestate (without making a Will).

However, in the case of a Hindu Undivided Family (HUF) property, there is a marked discrimination in determining the rights of a son and daughter to claiming inheritance. A son can claim a share in an HUF property as a matter of right, while a daughter, ceases to have any such right upon her marriage as she becomes a part of her husband’s family. After the 2005 amendment, the daughter has been recognized as a coparcener and her marital status makes no difference to her right over the father’s property.

Recognizing the need to eliminate gender biases in inheritance laws, the Supreme Court passed a landmark verdict in 2005. The amendment to The Hindu Succession Act, 1956 was a welcome piece of legislation which recognized the rights of the daughter as a coparcener (a person having a legal right in ancestral property accrued by birth), entitling her to the same rights and liabilities as a son. However, property inheritance rights granted under the Hindu Succession (Amendment) Act, 2005 are not applicable for self-acquired assets by the father and the father can transfer it through Will to anyone he wants.

This amendment has been the subject of various interpretations in several cases before the high courts and SC and a final verdict is still awaited.

In a landmark judgment passed on the matter of Prakash versus Phulavati in 2016, SC held that the rights under the amendment were available to living daughters of living coparceners as on 9 September 2005. In other words, a daughter could be eligible to be a co-sharer only if the daughter and the father were alive as on 9 September 2005.

In a broader analysis and interpretation of the Hindu Succession (Amendment) Act, 2005 in February 2018, in the matter of Danamma Suman Surpur & Another versus Amar & Others, the apex court held that a daughter, living or dead, as on the date of the amendment, shall be entitled to a share in her father’s property. This implied that even if the daughter was not alive on the date of the amendment, her children could claim their rightful portion. The court recognized that just like sons, the amendment also extended the status of the coparcener to a daughter, allowing her to enjoy the same rights as a son. The judgment, however, did not provide clarity on whether a father should also be living on the date of the amendment for the daughters to be eligible for their inheritance rights. In April 2018, in the Mangalaam versus TB Raju matter, SC held that the living daughters of living coparceners would be entitled to claim a share of the ancestral property.

There remains controversy on this matter and in August 2018, SC admitted a petition filed in the Vineeta Sharma versus Rakesh Sharma case. The matter is presently sub-judice and it is anticipated that the ambiguity around the nature and extent of a daughter’s rights to an HUF property would be finally settled in this matter, which is awaiting a hearing.

However, it becomes imperative to analyze whether such a law should be applicable retrospectively or prospectively. It also needs to be seen whether the retrospective application of the amendment will lead to unprecedented litigation among family members. An open approach on the retrospective nature of the law and a balanced view is the need of the hour to ensure that families are not sucked into endless litigation.