This article is submitted by:
- Soumya Khandelwal
In a landmark verdict passed by the three-Judge Bench of the Hon’ble Supreme Court on 11th August 2020 in the Judgement of Vineeta Sharma v. Rakesh Sharma (2020) SC 641, held that a daughter is a coparcener by birth and that whether the father is alive as on the date of the Amendment is irrelevant. The 2005 Amendment to Section 6 of the Hindu Succession Act gives a right to daughters, by birth, in a Hindu coparcenary which can be claimed prospectively, on and from the date of the amendment in 2005, which in turn has a retroactive effect. This made a progressive law on the question of the rights of a daughter as a coparcener and, more specifically, in what cases can those rights be successfully asserted.
According to Section 6 of the Hindu Succession Act, 1956, where a male coparcener had left behind the property to his male or female relative specified in Class I of the Schedule of the Act, then the daughter was entitled to the share in the self-acquired property of her father but not in coparcenary property, unlike their male counterparts.
Meaning of Coparceners and Coparcenary property under Hindu Law
The Hindu Succession Act (HSA), 1956 was introduced with the object of conferring rights to women in the property of a Joint Hindu family. It deals with the devolution of the coparcenary property of a person who died intestate (without leaving a will). However, the HSA 1956, fails to meet the very objective by not granting equal rights to women as compared to the male members of the family. With the coming of the Hindu Succession Amendment Act in 2005, daughters got equal rights in their ancestral assets and have the same rights and liabilities as that of a son which provided parity of rights in the coparcenary property of a Joint Hindu family.
Under the Mitakshara School of Hindu Law, a coparcener is a person who acquires an interest in the joint Hindu family and gets an equal share in the property by birth and the coparcenary property is the one which is inherited by a Hindu male from his father, grandfather, or great grandfather. Coparcenary property is a patriarchal concept that is deeply rooted in male right to property by birth in a Hindu joint family. A Hindu joint family consists of lineal descendants of a common ancestor consisting of sons, grandsons and great-grandsons. This smaller group of the family jointly owns property and thus the co-ownership is marked by title and interest in the property.
Hindu Succession (Amendment) Act, 2005- The Turning point!!
In 2005, the Parliament amended the Hindu Succession Act, 1956 to give equal rights to daughters in coparcenary property by birth, on par with sons in a family. Section 6 of this Amendment brought forth the rule of succession overrules of survivorship which implies that the property would be inherited by the order of birth irrespective of gender. This Amendment expanded the rights of daughters in the family and confer equal status to daughters as that of a son with the same rights and liabilities.
I. Right of females in the property before 2005
Situation 1. X, a Hindu male member is married to Y. X has two sons (X1 and X2) and a daughter X3. X owns a house which is a self -acquired property. X dies in 1970 and leaves behind class four heirs as per the Hindu Succession Act,1956.
In the above situation, prior to 2005 Amendment, the coparceners would be X, X1 and X2 whereas X3 i.e. daughter would have no right in coparcenary property and her right would be limited to the self-acquired property only.
II. Rights of females in the property after 2005 Amendment
Situation 2. X has two houses, one being the self- acquired property (A) and other the ancestral property (B). X has two sons (X1 and X2) and a daughter X3. X dies in 1970.
Post 2005 Amendment, the self-acquired property will be equally divided among X1, X2 and X3, whereas property B will not go to the daughter, it will be divided into the male members.
In a 2015 judgment in the Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36, the Two-judge bench of the Hon’ble Supreme Court had held that if the father had passed away prior to 2005 (date on which the amendment came into effect), his daughter would have no right to the coparcenary property and held that the Act of 2005 is prospective in nature. However, in case of Danamma @Suman Surpur & Anr v. Amar & Ors (2018) 3 SCC 343, the Court took a contradicting view and held that the amended Section 6 of the Act applies which gives the daughter equal coparcenary rights as that of the son even though the coparcener had died prior to the 2005 Amendment.
After the 2005 Amendment came in, the law became clear that if at the time of Amendment X was alive and if after Amendment X has died, then the daughter will have a share as she is a female coparcener in the family in the ancestral property as well.
The Supreme Court has clarified the rights of daughter in the property in the recent Judgement of Vineeta Sharma’s case that the daughter’s right in the coparcenary property is by birth irrespective of whether the father had died prior to or was alive on the date of the 2005 Amendment. If father has died before the Amendment, for instance in 1970 or1980, even then the female will have the right in the coparcenary property; irrespective of the fact that father is alive on the date of Amendment 2005 or not.
Situation 3. X a male Hindu member married to Y and has two sons X1 and X2 and a daughter X3. X dies in 1970 and X3 gets married in 1980. X1 and X2 continued to occupy the equity house. Can X3 (married women) in 2020, seek partition in the coparcenary property?
Yes. This condition is subject to the meaning of partition as defined under Section 6(5) of the Act, 1956 where ‘partition means effected by registered deed or decree of the court’. But in case of oral partition (where there is no written deed in a family settlement), if the sons prove properly by way of documentary evidence, then the daughters in such cases do not have right in the coparcenary property. If the acquired property is already partitioned, before the Amendment then it can’t be reopened only on the ground that daughters have an equal share as a coparcener after the 2005 Act.
However, if there arises a situation wherein the father died in 1980 and the daughter married in 2003 and there are two sons who believe that there exists oral partition when their father had died without any documentary evidence then there exist no settled partition of the property and hence the daughter can claim her share in the coparcenary property. The right of the daughter cannot be defeated on the mere basis that the partition is not complete. It can only be avoided in a trial when both preliminary and final decree is passed.
The judgment is indeed a welcome move and a progressive one. After the 2005 Amendment, the law under the Mitakshara coparcenary has been diluted to a greater extent by ensuring gender equality which is in line with the constitutional provision. The Hon’ble Supreme Court clarified the following issues:
- The provisions contained in substituted (not an amendment) Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as that of a son.
- Since the right arises by virtue of birth of the daughter, it is not necessary for the father coparcener to be living as on 9.9.2005, stressing that the law has a retroactive effect. The Supreme Court overruled the Prakash judgment in its entirety and partly overruled the views in the case of Danamma.
- In order to protect the rights of daughters, the Court also clarified that oral petitions and unregistered deed could only be considered only in exceptional circumstances by discharging burden of proof.
- Legally transferred right to property before 20th December, 2004 cannot be disputed.
The Court has expressly held that in cases where the final decree is yet to be passed and any pending litigation surrounding the applicability of Section 6 of the Amendment Act will now be resolved in compliance with the Vineeta Sharma verdict. The outcome of this judgement paves the way for the enactment of necessary law reforms by achieving the objective of gender equality and gender justice.
“The views of the authors are personal“