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| Daughters have equal coparcenary rights in joint Hindu family property: SC |
Introduction
Hindu Succession Act was enacted on
17th June 1956. Its main purpose is to amend and codify the law
relating to intestate succession among Hindus. It extends to the whole of
India. This Act applies to a person who is Hindu, Buddhist, Jaina or Sikh by
religion and does not apply to a person who is Muslim, Christian, Parsi or Jew
by religion.
Hindu Succession Act talks about
Succession and Inheritance. This Act applies to Ancestral property and Self
Acquired property. The women’s limited estate is abolished by this Act.
Objective
The main objective of this Article
is to look into women rights in Parental property after 2020 amendment &
also to look into the gender based discrimination against women done by the
rules made for Coparceners before the amendment of 2005 under Hindu Succession
Act, 1956.
Rights of Coparcener in Parental Property before 2005
The concept of Coparcenary has its origin in the concept of Dayabhaga explained by Vijnaneshwar. Coparceners are persons who have rights on Ancestral property and they can claim rights on Ancestral property. Limited peoples are included in Coparcenary. Earlier when Hindu Succession Act came into force in 1956 Devolution of interest in Coparcenary property under Section 6 is done on the rule of Survivorship. Section 6 of Hindu Succession Act, 1956 before 2005 amendment expresses that-
“Whenever a Male Hindu dies after
the commencement of this Act, having at the time of his death, an interest in
the Mitakshara Coparcenary property, his interest in the property shall devolve
by survivorship upon the surviving members of the coparcenary and not in
accordance with this Act:
Provided that, if the deceased had
left him surviving a female relative specified in Class 1 of the Schedule or a
male relative, specified in that class who claims through such females”
Rights
of Coparceners' in Ancestral property after 2005
In the year 2005, an amendment was
made to the Hindu Succession Act,1956 by the Hindu Succession(Amendment)
Act,2005. This Act received the assent from President of India on
5-September-2005 and was made effective from 9-September-2005. This Act was
enacted in order to remove all the gender discriminatory provisions in the
Hindu Succession Act,1956. This Act has brought about a central amendment which
is applicable to all the State governments. After this amendment Act came,
several changes were made in the old Hindu Succession Act.
Key
Amendments are as follows:-
●
Section 4 clause 2 was omitted
●
Section 23 was repealed which
disentitled a female heir to ask for partition in respect of a dwelling house,
wholly occupied by a joint family until the male heirs choose to divide their
respective shares.
●
Section 24 was repealed which
denies right of a widow to inherit her husband’s property upon her re-marriage.
●
One of the amendment which has tremendously
balanced the property rights of male and female siblings in the Joint Hindu
Family governed by Mitakshara Law was the amendment made in Section 6.
Section 6 talks about Devolution of interest in Coparcenary property, which says-
1(1) On and from the commencement of
the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu
family governed by the Mitakshara law, the daughter of a coparcener shall,―
(a) by birth become a coparcener in
her own right the same manner as the son;
(b) have the same rights in the
coparcenery property as she would have had if she had been a son;
(c) be subject to the same
liabilities in respect of the said coparcenery property as that of a son, and
any reference to a Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener:
Provided that nothing contained in
this sub-section shall affect or invalidate any disposition or alienation
including any partition or testamentary disposition of property which had taken
place before the 20th day of December, 2004.
(2) Any property to which a female
Hindu becomes entitled by virtue of sub-section (1) shall be held by her with
the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the time being in force, as
property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the
commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his
interest in the property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship, and the coparcenery property shall be
deemed to have been divided as if a partition had taken place and,―
(a) the daughter is allotted the
same share as is allotted to a son;
(b) the share of the pre-deceased
son or a pre-deceased daughter, as they would have got had they been alive at
the time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased
child of a pre-deceased son or of a pre-deceased daughter, as such child would
have got had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or a
pre-deceased daughter, as the case may be.
Explanation.―For the purposes of
this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted to him if a
partition of the property had taken place immediately before his death,
irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise
any right to proceed against a son, grandson or great-grandson for the recovery
of any debt due from his father, grandfather or great-grandfather solely on the
ground of the pious obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt:
Provided that in the case of any
debt contracted before the commencement of the Hindu Succession (Amendment)
Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect―
(a) the right of any creditor to
proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect
of or in satisfaction of, any such debt, and any such right or alienation shall
be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession
(Amendment) Act, 2005 (39 of 2005) had not been enacted.
Explanation.―For the purposes of
clause (a), the expression “son”, “grandson” or “great-grandson” shall be
deemed to refer to the son, grandson or great-grandson, as the case may be, who
was born or adopted prior to the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005).
(5) Nothing contained in this
section shall apply to a partition, which has been effected before the 20th day
of December, 2004
Explanation.―For the purposes of
this section “partition” means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908 (16 of 1908) or
partition effected by a decree of a court.
Now after the 2005 amendment under
Section 6 of Hindu Succession Act, daughter of a coparcener shall by birth
become a coparcener and get share in the Coparcenary property in the same
manner as the son.
An amendment was also made by 2005
amendment Act which provides Section 6(5) as an exception to the general rule,
which says that This Section does not apply to the deed of partition which was
duly registered under the Registration Act, 1908 or effected by decree of a
Court before the 20th day of December, 2004.
After the amendment of 2005, an
issue came into debate that-
❖Whether rights in
Ancestral Property can only be claimed by Living Daughters of Living Coparcener
as on 9-September-2005?
To solve this debatable issue
Supreme Court in the case of G. Sekar vs
Geetha & Others[1]
held that the amended Hindu Succession Act,2005 is only prospective in nature,
therefore rights in Ancestral property can only be claimed by Living Daughters
of Living Coparcener as on 9-9-2005.
After this judgement of Supreme
Court, a case came as Prakash &
Others vs Phulavati & Others[2] in
which Supreme Court upheld the same judgment as in G. Sekar’s case. The Supreme
Court rejected the contention of the Respondent that the Amendment Act was a
social legislation & hence it should be applied retrospectively and the
bench comprising Justice Anil Dave and Justice A.K. Goyal held that even though the legislation is a social
legislation it cannot be applied retrospectively, unless intended by the
legislature and expressly provided under such legislation. Therefore, rights in
Ancestral property can only be claimed by Living Daughters of Living Coparcener
as on 9-September-2005.
Just reverse judgement was given by
Supreme Court in the case of Danama
Suman Surpur vs Amar & Others[3].
In this case the bench comprising Justice
A.K. Sikri and Justice Ashok Bhushan had held that the share
of the father’s property who died in 2001 would also devolve upon his two
daughters who would be entitled to share in the property.
Vineeta
Sharma vs Rakesh Sharma & Others[4]
After the judgements of the case of Prakash vs Phulvati, & Danama vs Amar, divergence of legal
opinion is created and the matter came to be referred to a larger bench for
resolution in the case of Vineeta Sharma
vs Rakesh Sharma & Others, and in this case Supreme Court over ruled
the judgement of Phulvati case and bench comprising Justice Arun, Justice S.
Abdul Nazeer, and Justice M.R. Shah had
held that Daughter of a Coparcener can claim their share in the Coparcenary
property as this right is conferred on a daughter by birth and hence it is not
necessary that the father be alive as on 9-9-2005.
Critical
examination of laws before & after 2005 for Coparceners'
Our Constitution in Part 3 provides
to every citizen some Fundamental Rights in which Article 14 & Article 15
covers Right to Equality. Article 15
of the Indian Constitution expresses that the state shall not discriminate
against any citizen on the grounds of Caste, Religion, Race, Sex or Place of
Birth also Article 14 of the Indian Constitution expresses that The State shall not deny to any person
Equality before Law. But still our Hindu Succession Act before the amendment of
2005 had discriminatory laws in giving shares in Ancestral property to
daughters. In that earlier Act daughters are not Coparceners. This is creating
gender based discrimination against females. They neither have any birth right
in Ancestral property nor have the right to devolve it. After the 2005
amendment females got the Coparcenary rights in Ancestral property but those
daughters whose fathers died before the 2005 amendment till then don’t have
birth right as son under the Ancestral property. This is discriminatory law
against Equality before Law.
After the judgement in the case of
Vineeta Sharma, the Supreme Court gave a clearance that Daughters in Joint
Hindu Family governed by Mitakshara Law are Coparceners by birth as the sons
are. Death of father before 2005 amendment does not affect their Coparcenary
rights.