The law around the right to property inheritance of daughters was riddled with vagueness. The air has been cleared by the Supreme Court through a landmark judgment titled as Vineeta Sharma v. Rakesh Sharma (2020) SC in which it is held that a daughter is a coparcener by birth irrespective of whether the father coparcener passed away before or after 9th September 2005 (the day when Parliament recognized this right by amending the Hindu Succession Act of 1956).
Who is a coparcener and what is coparcenery property?
Coparcenary property is that property which is inherited by a Hindu from his/her father, grandfather or great-grandfather. Coparcenary consisits, a person at the top of a line of descent, and his three lineal descendants — sons,grandsons and great-grandsons.
Coparcenary property is different from self acquired property as self acquired property is earned by own efforts and in self acquired property the person acquiring is the sole owner ,nobody except the owner can exercise any right on the same .
Under the Hindu succession law, the term coparcener is used to denote a person, who presumes a legal right in his ancestral property, by birth in a Hindu Undivided Family (HUF). As per the Hindu Succession Act, 1956, any individual who is born in an Hindu Undivided Family, becomes a coparcener by birth.
Only Males as Coparceners.
According to the Mitakshara School, the allocation of parental property is based on the rule of possession by birth and only sons had an exclusive right by birth in the joint family property, therefore Mitakshara coparcenary law contributed to discrimination on the ground of gender and invalidated the fundamental right of equality guaranteed by the Constitution of India.
Can women become coparceners?
Before 2005, women were not a part of the coparcenary and hence, could not claim or inherit the coparcenary property.
In 2005, the Legislature, through a reformist amendment to the Hindu Succession Act 1956, brought in the much awaited change, by granting coparcenary rights to daughters.
Section 6 of this Amendment brought forward the rule of succession overrules of survivorship which implies that the property would be inherited by the order of birth irrespective if he’s a son or she’s a daughter. This Amendment expanded the rights of daughters in the family and conferred equal status to daughters as that of a son with the same rights and liabilities.
Confusuions after the 2005 amendment
Although since 2005, the law has been that women are also successors to their father’s property but the position of a woman to inherit her father’s property after her father’s death, was not very clear as concerning to the day of enforcement of the law.
There were two primary questions dealt with, whether a daughter would be entitled to coparcenary rights if:-
- The daughter was born prior to the effective date of 2005 act?
- The coparcener (father) had passed away prior to 09.09.2005, i.e date of amendment of the act.
In Prakash vs Phoolwati (2016) 2 SCC 36 case, a two-judges Bench headed by Justice AK Goel held that the 2005 amendment could be applicable only for “living daughters of living coparceners” as on September 9, 2005 (the date when the amendment came into force).The Supreme court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005 and these verdicts made it clear that both father and daughter should have been alive on September 9, 2005, for a daughter to be treated as coparcener.
On the other hand,
In Danamma vs Amar, (2018) 3 SCC 343, the apex court had held that Section 6 is retrospective in nature i.e. even though the father was not alive when the amendeded Section 6 came into force in 2005, daughters were entitled for a share in ancestral property.
After these two conflicting judgments passed by two-judges benches of the Supreme Court ,the need for a three-judge bench to hear this matter arose.
Confusion Cleared
In the case of Vineeta Sharma v. Rakesh Sharma confusion arising from the apex court’s conflicting interpretations of the amended Section 6 of Hindu Succession are ironed by a bench of 3 Justices Arun Mishra, S Abdul Nazeer and M R Shah.
This verdict has made it clear that coparcenary status of daughters is created by birth, and is not dependent on whether the father was alive or not on the date on which it came into force and that a daughter has the same status as a son as soon as she is born. The importance of this verdict is that it has put an end to all doubts about when the amendment comes into force, and that some women would not be left out if this amendment had retrospective application.
The Supreme Court in order to protect the rights of daughters, also annotated that oral petitions and unregistered deed could only be considered only in exceptional circumstances by discharging burden of proof. And it has been made clear that Legally transferred right to property before 20th December, 2004 cannot be disputed.
The Court has held that in cases where there are any pending litigation surrounding the applicability of Section 6 of the Amendment Act, those litigations will now be resolved in compliance with the Vineeta Sharma verdict. The outcome of this judgment flags the way for the enactment of necessary law reforms by achieving the objective of gender equality and gender justice.