Introduction
The Hindu Succession Act, 1956 (HAS), in its original form did not give the daughter of a coparcener equal right to the ancestral property as that of a son. Therefore the act was amended in 2005 to counter balance the gender. After the amendment, the daughter of the coparcener in a Hindu Undivided Family (HUF) has got equal rights, liabilities, and duties as her brothers. Hence any ancestral property has to be shared equally among all coparcenary members including women since 2005. The amendment came into effect on 9th September 2005. The marital status of the daughter also does not make any difference in their right over their undivided family property.
However the 2005 amendment of the act left some confusion and the courts started issuing conflicting judgments in regard to the woman’s right. Among those judgments the Prakash v Phulavati judgment in 2015 and the Danamma v. Amar judgment in 2018 are the most crucial ones.
Prakash v Phulavati case
In Prakash v. Phulavati case, the Supreme Court held that the right under the amendment was applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.
The judgment declared that if the coparcener (the father) had passed away prior to 9th September, 2005 (date on which the 2005 amendment came into effect), the living daughter of the coparcener would have no right to coparcenary property.
Again in 2018 another two member bench of the SC in Danamma v Amar issued another conflicting judgment.
Danamma v Amar case
In Danamma v. Amar, contrary to the 2015 ruling in Phulavati case, the SC held that the share of a father who died in 2001 will also pass to his daughters as coparceners during the partition of the property as per the 2005 law.
In the judgment the court held that the 2005 amendment confers upon the daughter the status of a coparcener in her own right in the same manner as the son by birth. Thus, it confers equal rights and liabilities to daughters and sons in the coparcener properties.
The court held that the 2005 amendment operates in future and it shall not apply to a partition put into effect before 20th December 2004. But by virtue of its retroactive operation, it confers rights on daughters from the time of their birth, even if the birth took place prior to the date of amendment. This is because the operation of the 2005 amendment is based upon the character or status that arose earlier based on antecedent events. Under the amended section 6 of the HSA, since the right to the daughter is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.
Thus, effectively, it becomes unimportant whether the father coparcener was alive at the time the amendment was brought in or not when considering the daughter, by virtue of this amendment, acquired the rights of a coparcener with the retroactive application.
In 11th August 2020, the SC resolved the conflicting issues with regard to women’s right in coparcenary property in Vineeta Sharma v Rakesh Sharma case.
Vineeta Sharma v. Rakesh Sharma case
The Vineeta Sharma v Rakesh Sharma case reached the SC as an appeal. Since there were conflicting decisions in Prakash v Phulavati and Danamma v Amar, by benches of equal strength, the judges sent the case for reference to a three-judge Bench for resolving the conflicting issue.
The issue came up before the SC in Vineeta Sharma v Rakesh Sharma case was whether with the passing of the Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall by birth becomes a coparcener in her own right in the same manner as the son.
In other words, whether a daughter could be denied her share on the ground that she were born prior to the enactment of the Act and, therefore, cannot be treated as coparcener?
In Vineeta Sharma v Rakesh Sharma the three-judge Bench of the SC categorically that a Hindu woman’s right to be a joint heir to the ancestral property is by birth. It does not depend on whether her father was alive or not when the amended law was enacted.
The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does. Since the coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9.9.2005, the SC held in unequivocal terms.
The precise decisions of the SC are as follows:
- The provisions contained in substituted 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 son with same rights and liabilities.
- 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 20th day of December, 2004.
- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
- 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 ClassI 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.
- In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outright.
- The pending matters on this question, suits / appeals before different High Courts and subordinate courts should be decided, as far as possible, within six months.
Summing up
The judgment made it clear that a daughter since her birth is an equal share holder as that of a son in a coparcenery property without any discrimination at all.
The states of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have already made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala state also enacted the Kerala Joint Family System (Abolition) Act 1975 giving equal rights to daughters in the coparcenary property. Therefore the judgment will not make significant changes in those states.
Additional sources for reference
- Prakash v Phulavati, decided by the SC on 16 October, 2015, available at https://indiankanoon.org/doc/143363828/
- Danamma v Amar, decided by the SC on 1 February, 2018, available at https://indiankanoon.org/doc/88759498/
- Vineeta Sharma v Rakesh Sharma, decided by the SC on 11 August, 2020, availalbe at https://indiankanoon.org/doc/67965481/
