Equality in Hindu Personal Law has now taken a step forward. While Hindu Succession Act 1956 which governs intestate succession was amended in 2005 to bring daughters’ rights and liabilities at par with that of the son in the Mitakshara Law, its applicability had remained questionable until the recent 2020 judgment passed by the Supreme Court. The 2005 Amendment came into effect from 09.09.2005 and broke the chains of patriarchy that had been ruling the property rights in Mitakshara property rights.
To briefly clarify about the 2005 Amendment, it has resulted in raising the status of female coparceners of a Hindu Undivided Family in equal footing to that of the male coparceners. It gave them statutorily recognised property right by birth and the right to claim partition(as the right to claim partition lies only with the coparceners) of the same under sections 6 and 23 of the Act irrespective of their marital status. It added an explanation to clarify the meaning of “partition” which reduced the cases of daughters being deprived of their right due to sham, fraudulent transactions. It also abolished the concept of the survivorship which meant that the property would devolve on the surviving coparcenary only. In rule of survivorship, females “were entitled to their share of notional partition only after the death of the Karta while all the male members were eligible to acquire their shares even before the Karta’s death due to bearing the rights of coparceners.”[1]
It opened doors towards equality which is enshrined in the Indian Constitution. Gender discrimination has been ruled out with the help of this. Previously, under section 6, the defense of oral partition was accepted and fraudulent claims were made to manipulate the share and as per section 23, only male heirs could claim partition and the rights of female heir were just as a Sharer. It meant that their right was contingent on the male heirs’ exercising their right to claim partition.
Coparcenary is “unity of title, possession and interest.”[2] Being a member of the Joint Hindu Family does not necessarily make you the coparcener. The coparcener includes people who acquire the interest in coparcenary property by birth which now includes the females contrary to the religious belief which portrayed males as the only interest holders.
The judiciary has played an important role in implementing the object of the amendment.
The Supreme Court in a Two-Judge Bench decision in Prakash and Others vs. Phulavati [3]“held that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born.” The case prima facie gave the amendment a prospective effect. This was taken as a precedent for future cases, but was criticised as being an act of judicial overreach since the amendment nowhere mentioned the terms “living daughter” and “living coparceners.” The court tried to resolve this problem in another Two-Judge Bench decision in 2018, i.e. Danamma @ Suman Surpur & Anr v. Amar & Ors[4].
In this case, Father (coparcener) had died in 2001 leaving behind joint family property, and the partition suit was filed in 2002. During the pendency, the section was amended thus the question arose about the division of shares among the sons, daughters, and widow. It is the “factum of birth” which creates the coparcenary and devolution follows after death. Thus, it concluded that the daughters are eligible to get a share in the property.
“It is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener now even a daughter who is a coparcener.”
What we can conclude by reading both the cases is that, the pendency of a partition suit initiated by male coparcener, irrespective of it being before or after the amendment, decides the claim of daughter in the property as a ‘equal coparcenary.’ Following Phulavati case, no ‘female coparcener’ can initiate partition proceeding if father died before 9.9.2005. But if Danamma case is to be followed, if a pending suit is present initiated by male coparcener, then their right is guaranteed notwithstanding the date of father’s death. As there is a clear contradiction between the two cases, there was a need for clarity by a higher bench clearing the air about the interpretation and applicability of the 2005 Amendment.
The 2020 judgment in Vineeta Sharma v Rakesh Sharma[5] is a Three-Judge Bench decision wherein many cases by the Supreme Court and the High Courts and Committee Reports have been considered and after analysing them, the proper interpretation of the section has been rendered modifying, concurring and overruling with the referred cases.
The case has recognised the conflict and involves the similar question regarding the rights of the daughters in light of the 2005 amendment.
Summarising the judgment, the conclusion that is reached is that since the amendment, the status of coparcener is conferred on the “daughter born before or after amendment in the same manner as son with the same rights and liabilities.” Subject to the “disposition or alienation, partition or testamentary disposition before 20th day of December 2004”[6], the right of daughter remains independent of birth date. The necessity of a “living father” is now removed. Regarding the question of pending suits and registration of partition, the court has held that, the daughter’s share shall remain unaffected even if a preliminary decree in the suit has been passed and oral plea of partition is unacceptable if it cannot be proved with proper documents and execution.
Recognising that already daughters have long been deprived of equality under the section, the court gave the direction for pending matters to be decided in the same light within 6 months.
Finally, we can see progress towards gender equality at least in cases of Mitakshara property rights disproving the superstitious religious beliefs people had for sons. It is only now that the Amendment has got its true meaning and achieved the objective of abolishing discrimination.
References:
1.https://blog.ipleaders.in/coparcenary-hindu-law/
2.https://www.lawctopus.com/academike/coparcenary-india-past-present-future/#:~:text=The%20Hindu%20Succession%20Act%201956,Females%20will%20not%20inherit.
3. (2016) 2 SCC 36
4. (2018) 3 SCC 343
5. 2020 SCCOnline SC 641
6. HSA, 1956, s. 6(1) proviso.
About the author –
This article is authored by Shefali Agarwal, a final year law student at National Law University Odisha.
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