RIGHTS OF DAUGHTER AS COPARCENERS UNDER HINDU SUCCESSION (AMENDMENT) ACT, 2005

INTRODUCTION

In recent times, in Joint Hindu families, the property dispute has risen to a great extent. The situation demands equal distribution of properties among the family members. The history of Hindu personal laws shows us that only male family members were considered eligible for inheriting the properties and were termed as coparceners. Over time, people started realizing that the head of the family should consider making women coparceners in their property, as the earlier system was violating the fundamental rights of the Right to Equality mentioned under the constitution of India. Thus, it became necessary to bring in amendments to the Hindu Succession Act, 1955.

HISTORY

The inception of Hindu personal laws dates back to 1100-1200 A.D There are two schools of Hindu law, namely- ‘Mitakshara School of Law’ and ‘Dayabhaga School of Law.’ Mitakshara school of law talks about the rule of survivorship. The male members of the family, when born, acquire an equal interest with their father in all ancestral property held by their father. After the father’s death, the son, being the survivor, takes possession of the property. Under this school of Hindu law, only agnates, i.e., only the male family members, had right over the ancestral properties. The daughters/women had no right over such joint properties of the family. Gradually, as time passed, women’s voices arose that stated that women should also own their father’s properties. In case the daughter is the only child of her parents, what about the property then? The Hindu Succession Amendment Act of 2005 abolished survivorship, and now women/ daughters have equal rights over the property.

Coparcenary means a person who has the birthright over their joint family property—Coparcenary property inherited by a Hindu man from his father, grandfather, or great grandfather. The coparcenary property is considered a joint owner, and only a coparcener has the right to demand partition of the property.  

The Dayabhaga School of Hindu Law followed the Sapinda concept, i.e., one who can offer Pinda (an offering to the dead elders of the family). In this school, the cognates, i.e., both males and females, were allowed to offer it. The rule of succession followed in this school allows both son and daughter to inherit the joint property of the family. They are known as coparceners. Due to the discrimination observed in the mitakshara school, the Hindu Succession Act, 1956 had amended in 2005, and Section 6 of the act was amended, making the daughters eligible as coparceners. The law gave the daughters the right over the coparcenary property as she would have gotten if born as a boy. The Supreme Court observed that gender could not be grounds for denying women their right to inherit property. Thus, under the impression of the right to equality, the Supreme Court removed the age-old practice of males inheriting the property.

HINDU SUCCESSION AMENDMENT ACT, 2005

Under Hindu Succession Amendment Act, 2005, section 6 states that the purpose of the amendment was to confer the same legal rights and liabilities upon the daughters as provided to the son on the ancestral properties. The question that arose in the court was whether this rule could be applied retrospectively, which means whether all such similar cases before 2005 will affect the new law or not?

Case Laws

  1. In the case of Prakash v. Phulvati[1], the two -bench judge had observed that if the father (the coparcener) has passed away before 9th September 2015 (the date of enforcement of the amended act), then his daughter would not have any right over the coparcenary property, as per 1956 act. The Supreme Court reversed the judgment according to the new law of sec 6. The Defendants questioned the High court’s decision and argued that the provisions of section 6 of the amended act do not apply to this case. It was held that “Legislature has expressly made Amendment applicable on and from its commencement and only if the death of coparcener in question is after Amendment. No other interpretation is possible in view of the express language of the statute.”
  2. In the case of Danamma v. Amar[2], the division bench judge of the Supreme Court had observed that the amended section confers the full right upon the daughters. The daughters can claim their rights over the properties despite their father having passed away in 2001.
  3. In the case of Vineeta Sharma Vs. Rakesh Sharma[3], the 3 Judge bench of Justice Arun Mishra, Justice S Abdul Nazeer, and Justice MR Shah sat down to clarify the issue of retrospective application of the law. In the case, it was observed and held that:
  4. The provisions in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.
  5. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition, or testamentary disposition which had taken place before the 20th day of December 2004.
  • Since the right in coparcenary is by birth, father coparcener doesn’t need to live as of 9.9.2005.
  1. In the case of Shri Badri Narayan Shankar Bhandari & Ors v. Omprakash Shankar Bhandari[4], the question arose whether section 6 of the 2005 act is retrospective in nature, with effect from 17-06-1956 and if the benefit of the same could apply to all daughters born after 17-06-1956. The SC held that the daughter was claiming the right in a property mentioned under sec 6, must herself be alive at the time of the 2005 Act. The act of 1956 applied to all Hindus irrespective of their date of birth. The only requirement was that the claimant must be in existence.

Other Contentions

In the constitutional applicability of Provision having a retrospective effect on Hindu Succession Amendment Act, 1956, it was later questioned during the arguments in the Badri Narayan Case that, what about the coparcener daughter, who died before the enforcement of the 2005 Act. Answers to this were those coparceners who died before 9-9-2005 will be governed by pre-amended section 6(1) of the act of 1956. Only in case of death of a coparcener on or after 9th September 2005, the amended Section 6(3) of 2005 [5]act would apply,

Rights of women (mother/ wife/ daughter) to inherit the coparcenary property after the death of the Karta of the family.

  • The Schedule of the Hindu Succession Act divides the heirs into two classes: Class I and Class II. Underclass I, the son, daughter, mother, widow, and many others; class II comprises Father, son’s daughter’s son, father’s father, father’s mother, and many others as mentioned under the Hindu Succession Act, 1956.
  • Under this act, if a man passes away without leaving a will, as per law, his property will be equally distributed among his widow, his children, and his mother (class I). The father of the deceased son is considered class II heir in his son’s property and will inherit only in the absence of any member of class I in the family.
  • If a deceased man had executed ‘Will’ before his death and in that if he had only decided to transfer the property to his sons, then not only will it be implemented as per the ‘will,’ but also can be challenged by the daughter (if any) and other heirs (if any), in the court of law.
  • If any deceased man has pre-deceased his mother, i.e., died before the death of his mother, then along with wife and children, the mother has equal rights on his property.

CONCLUSION

At this juncture, it is vital to understand the gravity of the succession laws in India. After the amendment act in 2005, daughters have the right to become coparceners in their father’s property. If a man has only one daughter as his heir, this act ensures that the daughter gets all the rights over the coparcenary property. The Karta of the family must make sure his legal heirs get an equal proportion of the property. With the passing of time and the advancement of people’s knowledge, there was a dire need for this amendment which took place way before its time in 2005. These amendments can ensure equality among all the family members, provided they get implemented efficiently.

Author(s) Name: Avik Ghose (Xavier Law School, Xavier Institute of Management University)

References:

[1] Prakash v. Phulvati, AIR 2011 Kar 78: [reversed] (2016) 2 SCC 36.

[2] Danamma v. Amar, (2018) 3 SCC 343.

[3] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.

[4] Shri Badri Narayan Shankar Bhandari &Ors. v. Omprakash Shankar Bhandari, AIR 2014 Bom 151.

[5] Hindu Succession Amendment Act, 2005, s 6(3).

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