The top court, which overruled its earlier 2015 decision in which it had held that the rights under the amendment are applicable to living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born, also observed that "a daughter always remains a loving daughter".
It also quoted its earlier judgement and said “A son is a son until he gets a wife. A daughter is a daughter throughout her life.” The three-judge bench Tuesday said, "the rights can be claimed by the daughter born earlier with effect from September 9, 2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before December 20, 2004. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005." Coparcener is a term used for a person who assumes a legal right in parental property by birth only.
The apex court, in its 121-page judgement, said the statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary.
"The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female.
"The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal," the bench said.
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