Daughter’s Equal Coparcenary Right Under the Hindu Succession Act, 1956

  • Yukta Ambastha and Shreya Srivastava

INTRODUCTION

 Patriarchal Hindu society provided women with property known as stridhan[1], and it mainly came from marriage gifts. However, women were denied property rights to the ancestral property and their right over the succession of the landed family property was limited. Restrictions imposed on the Hindu women‘s property rights have undergone radical change and current laws governing these rights are not stringent like those of ancient patriarchal society. Several pieces of legislation were passed that aimed at removing the barriers and conferring equal property rights on Women. The Hindu women’s right to property Act, 1937 was one of these legislations that recognized three classes of widows: viz., intestate‘s widow, widow of a predeceased son, and the widow of a pre-deceased son of a predeceased son as heirs of a Hindu male. The daughter had virtually no inheritance rights. The widow had a limited interest in the property of the deceased with a right to claim partition. But, the widow did not become a coparcener even though she was a member of the joint family and possessed a right akin to a coparcenary interest in the property. Under customary Hindu law, women did not have any substantial claim in the inheritance of property, and even in the remote occasions where they could inherit, it was only a limited estate. This sexual discrimination in the Hindu succession rules has been done away by the recent amendment made to the Hindu Succession Act,1956. The ambiguities regarding the application of the amended provisions of Section 6 have also been settled by the supreme court in the latest judgment wherein the court has considered daughters at par with sons and located the origin of coparcenary rights on one’s birth and not on gender.

Laws of Succession: Mitakshara and Dayabhaga School

Before the enactment of the Hindu Succession Act, 1956, succession laws were governed by the customary laws which varied from region to region. There are two principal schools of Hindu law, the Mitakshara, and Dayabhaga. The Dayabhaga school of law is pervasive in Bengal and Assam. Mitakshara school of law is in force in the rest of India. The Mitakshara was based upon the coparcenary consisting of males up to four generations in the undivided property of which every male (coparcener) acquired an absolute interest by birth. The amount of this individual interest fluctuated with births and deaths of coparceners. Under the Mitakshara, women could not become coparceners, hence they did not have a right in the joint family property by birth. Under the Dayabhaga system, males did not acquire a right by birth and the division of shares could take place only upon the death of the owner. Women under Dayabhaga inherited an interest in all property, separate and joint family

In Mitakshara coparcenary, there is the concept of unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth it is called unobstructed heritage. In case a coparcener dies without leaving a male issue, the right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of Section 6 of the Hindu Succession Act.

SECTION 6 OF THE HINDU SUCCESSION ACT (PRE & POST 2005 AMENDMENT)

According to Section 6 of the Pre-Amendment Act 2005, no female was a member of the Mitakshara coparcenary property as they were considered of not being a lineal descendant of the coparcener or from the same bloodline. Though a widow or daughter could claim a share being a class I heir in the property left by the deceased coparcener and a widow was entitled to a right to claim a share in the event of partition but the daughter was not treated as a coparcener. Only the lineal descendants of the coparceners through survivorship rule were said to be the coparceners. The Pre- 2005 Amendment Act was discriminatory on the grounds that women were not considered as coparceners to inherit the ancestral property since birth like the sons.

Before 2005, the coparceners consisted of the person at the top of the line of descent and his three lineal descendants.e., only sons, grandsons, and great-grandsons were holders of a joint property but the 2005 amendment to Section 6 of the Hindu Succession Act, 1956gave equal rights to daughters in the ancestral property. The 2005 amendment vests equal rights in daughters to her father’s property despite becoming a member of her husband’s undivided family.  Since the amendment allowed a woman to be a coparcener it automatically confers on the woman to be a Karta of the joint family. The amendment made daughter a coparcener, with effect from the date of the amendment and she can claim partition also, which is a necessary concomitant of the coparcenary.

CONFLICTING OPINIONS ON THE APPLICABILITY OF THE ACT TO DAUGHTERS

The 2005 amendment failed to provide clarity with respect to its applicability and scope. Though the amendment to the Act paved the way for the equal distribution of undivided interests in coparcenary property but ambiguities relating to the prospective or retrospective nature of Section 6 arose. The issue raised was that whether a daughter could be denied her share on the ground that she was born prior to the enactment of the Act and, therefore, cannot be treated as a coparcener. The Supreme Court gave conflicting opinions on this issue.

In the case of Prakash v. Phulavati[2], the Supreme Court held “If the coparcener (father) had passed away before September 9, 2005, i.e., the date on which the amendment came into effect, the living daughter of the coparcener would have no right to coparcenary property.”It held that a daughter cannot reopen a partition that took place prior to December 20, 2004. Second, the amended section would apply to the daughter only if her father was alive on the date when the amendment came into force, that is, September 9, 2005. If the father who was a coparcener was not alive on the date the amendment came into force, Section 6 would apply as it existed prior to the 2005 Amendment.

A contrary view was taken by the Supreme Court In Danamma v. Amar[3], the Supreme Court had held that the 2005 amendment would apply retrospectively and it confers upon the daughter the status of a coparcener in her own right in the same manner as it is conferred on a son. Thus, it confers equal rights in the coparcener property to daughters and sons. It was the factum of birth of the daughter that gave her coparcenary right, irrespective of when she was born, and that devolution of property is a later stage which occurs as a consequence of the death of a coparcener.

In view of these conflicting decisions, the question concerning the interpretation of Section 6 was referred to a three-judge bench in the case of Vineeta Sharma v. Rakesh Sharma.  The apex court rejected the misinterpretation that only daughters of coparceners who were alive on that day could get an equal share in the property. The Supreme Court affirmed the retroactive nature, effective from a date before it was approved of Section 6 and upheld the right of a daughter to be entitled to an equal share as a son in ancestral property, irrespective of when she was born. The Court stated that though the coparcenary rights can be claimed, with effect from September 9, 2005. The Court overruled the previous judgment and said that since the daughter acquired the coparcenary right by birth, it was not necessary for the father (coparcener) to be living as on September 9, 2005. Hence the date of the father’s demise, within the meaning of the date of the enactment of the amendment (September 9, 2005), loses its importance and is no more relevant when partition takes place.

CONCLUSION

The SC decision finally ends the flagrant discrimination that persisted between sons and daughters regarding the entitlement to an equal share in coparcenary property. It has settled all the doubts arising from the varying interpretations done by the Supreme court in other cases. The Court has rightly located the coparcenary rights in one’s birth. There is no need for a predecessor coparcener to be alive for one to achieve that status. The judgment has removed the legal ambiguity in the amendment to the Hindu Succession Act, 1956 by granting equal rights to daughters to inherit ancestral property would have a retrospective effect. Gender cannot be a ground for denying anyone anyone their inheritance right. Giving equal coparcenary rights to daughter is in consonance with the spirit of equality under Article 14 of the Indian Constitution. The judgment is a progressive step towards gender parity and is significant to end the patriarchal notion in society.

The authors are third-year law students at National University of Study and Research in Law, Ranchi.


[1]Rajamma vs. Varidarajula Chetti, AIR 1957 Mad 198.

[2] (2016) 2 SCC 36. 

[3]  (2018) 3 SCC 343.

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