Equal Coparcenery Rights to Daughters

“A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life” the Apex Court observed while delivering a landmark judgment upholding equal coparcenary rights to daughters under the Hindu Succession (Amendment) Act, 2005.

The Supreme Court on August 11, 2020, cleared the air because of the conflicting verdicts rendered in two Division Bench judgments of the Supreme Court in Prakash & Ors. v. Phulwati & Ors.[1] and Danamma @ Suman Surpur & Anr. v. Aman & Ors.[2], and by its judgment affirmed that the Amendment of 2005 has a retrospective operation.

The bench of Justices Arun Mishra, S Nazeer, and M R Shah in the matter of Vineeta Sharma v. Rakesh Sharma & Ors., clarified that the provisions contained in Section 6 of the Hindu Succession Act, 1956, confer the status of coparcener on the daughter born before or after the amendment in the same manner as a son.

Background

Historically, songs have always been given preference in all the matters, especially concerning succession in the joint family property. On the death of a male Hindu, his share in the ancestral property devolved not on his heirs, but upon the other surviving coparceners, this was known as the Doctrine of Survivorship.

But, when the Hindu Succession Act came into force in 1956, it gave limited operation to the Doctrine and granted some rights to the females. The proviso to Section 6 laid down that when a male Hindu died leaving behinda female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

However, even after the Act came into force, gender-based discrimination was a hard reality that persisted in matters of inheritance. Therefore, a need was felt to remove these disparities and bring daughters on par with the sons. This change was sought to be brought by the 2005 Amendment. The statement of object and reasons of the amendment specifies that by way of the amendment, “It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.”

So, under the 2005 Amendment, daughters were made coparceners in the joint family property, and they acquired an interest by birth in such properties, just as the sons, and were subject to the same rights and liabilities. Therefore, the discrimination with the daughters in matters of inheritance was done away with, and they were provided equal treatment in matters of inheritance under the Mitakshara Coparcenary.  

Thereafter, the question of whether the amendment has a retrospective operation was raised before the Courts. In the matter of  Prakash & Ors. v. Phulwati & Ors. (Supra), a Division bench answered the question in negative. It was held that the amendment was not retrospective in operation and that it applies when both coparceners and his daughter were alive on the date of commencement of   Amendment   Act,   9.9.2005. On the other hand, in the case of  Danamma (supra), another division bench held that amended Section 6 of the Act, confers full rights on the daughter Coparceners.

The present judgment by a three-judge bench of the Supreme Court settles the ambiguity surrounding the rights of daughters in inheritance.

Judgment

Shri Tushar Mehta, the learned Solicitor General of India, who appeared on behalf of Union of India, argued that the daughters have been given the right of a coparcener, to bring equality with the sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of Fundamental Rights.

While delivering its judgment, the Court observed that:

“The daughters cannot be deprived of their right of equality conferred upon them by Section 6.

Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognized in section 6(1), it is not necessary that there should be a living, coparcener, or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, a daughter born before can claim these rights only with effect from the date of the amendment, i.e., 09.09.2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).”

Therefore, as the right is by birth and not by dint of inheritance,  it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. 

Also, the argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary (owing to the doctrine of survivorship), and there was no coparcener alive from whom the daughter would succeed, was refuted by the Court. The reasoning given for the same was because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth.

The Court further examined how the right of a coparcener is acquired under the Mitakshara coparcenary. It held that it cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in Section 6, she has been made a coparcener.

Lastly, the Court held that the relating matters have already been delayed due to the legal imbroglio caused by conflicting judgments of the Courts. Therefore,  the precise declaration made in Section 6 (1) has to be taken to its logical end, otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Given this, the Court requested that the pending matters be decided, as far as possible, within six months.

Conclusion

The  Judgement by the Supreme Court, in this case, is a welcoming one, and gives the daughters much-needed rights in inheritance and brings them at par with their counterparts.

As a result of the judgment, injustices by the classical Shastric Hindu Law have been done away with and the provisions have been brought in consonance with the spirit of the Constitution. 

The verdict is a “progressive step” taken in the direction of gender equality by the Supreme Court and would go a long way in ensuring that daughters are not denied of their rights merely because of the reason of being a female.

References


[1]  (2016) 2 SCC 36

[2] (2018) 3 SCC 343

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