This article is written by R Sai Gayatri, pursuing an Introductory Course in Legal Writing For Blogging, Paid Internships, Knowledge Management, Research And Editing Jobs from LawSikho.

Abstract

This article discusses the succession of the coparcenary property under Hindu law. It covers the history as to why the Hindu Succession Act, 1956 was enacted and elucidates its oppression on the fundamental right to equality enshrined under Article 14 of the Indian Constitution and the discrimination subjected upon women based on their gender. It talks about the development of the law over the years regarding the coparcenary rights of women. The case laws paramount to understand the impact of the Hindu Succession (Amendment) Act, 2005 have also been mentioned.

Introduction 

The Hindu Succession Act, 1956 (the ‘Act’) was the first of its kind that dealt with the succession of ancestral properties according to Hindu law. It codified the Hindu law on how the ancestral property must be acquired only by the male lineal descendants of an ancestor in a joint Hindu family. The Act was of the ideology that, since a woman will one day get married and be a part of some other family, she must not be legally considered as a coparcener. Though the women had an ‘absolute ownership’ over their own property, they could not claim coparcenary rights over the ancestral property. This made the Act to be outrightly discriminatory towards women based on their gender and oppressed their fundamental right to equality enshrined under Article 14 of the Indian Constitution. 

Seeking to put an end to the discrimination subjected upon women by the Mitakshara Coparcenary, the lawmakers in India realized the need to enact a gender-neutral law. An Act that would not oppress women and give them equal rights over the ancestral property. Thus, the amendment of the Hindu Succession Act, 1956, took place. On 9th September 2005, the Hindu Succession (Amendment) Act, 2005 (the ‘Amendment Act’) came into existence. This Amendment Act enabled women to be the legal joint-heir and acquire the coparcenary property just as their male counterparts. It put an end to gender discrimination and protected the fundamental right to equality of women from being violated in this matter.

To proceed with the reform, Section 6 of the Hindu Succession Act, 1956, was amended. It stated that “on and from the commencement” of the Amendment Act, 2005, the daughter of a coparcener shall have a right on the coparcenary property by birth, just the way that it is with the son. The daughter also shall have the same liabilities as the son does. This concept is termed as “unobstructed heritage”. 

The Supreme Court’s conflicting judgements in the Phulavati Case and Danamma Case led to confusion among people. There was a dilemma as to what extent does a daughter have coparcenary rights over the ancestral property. This paved the way for an appeal in the apex court. The Supreme Court’s judgement in the case of Vineeta Sharma v Rakesh Sharma cleared the air and provided clarity on how a daughter of a joint Hindu family is also a legal heir and has the right to inherit the coparcenary property. 

Background and history 

• The time goes back to when there was no particular law that governed the succession of property among all the Hindus. Based on caste and customs various laws were formed, these laws again were different in different locations. To establish a uniform law that would deal with all forms of coparcenary inheritance under the Hindu law, the Hindu Succession Act, 1956 was enacted.
• The enactment of the Hindu Succession Act, 1956 introduced the survivorship rule, i.e., the property devolves upon the survivor only after the death of the common ancestor. The inheritance of the ancestral property depended on this rule. The coparcenary rights on such property extended only to the male heirs who fall within the ambit of three degrees of the coparcener. They were known as lineal descendants of the ancestor.
• Section 6 of the Hindu Succession Act, 1956 (before amendment) stated – “Devolution of interest in coparcenary property- When a Hindu male dies after the commencement of this Act, having at the time of his death an interest in a 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”.
• However, women in no way were considered to be the equivalent legal heirs of the ancestral property as to men. The reason for such exclusion was that she will one day marry and become a part of some other family. In the case of the wife of a coparcener, the reason was that she does not count as the direct bloodline of the ancestor. This discriminatory approach towards gender and the oppression of the fundamental rights of women called for an amendment of the Hindu Succession Act, 1956. 

Development of the law over the years 

• After five decades of going back and forth over the topic of deciding whether a woman has the right to inherit the coparcenary property or not, the Hindu Succession (Amendment Act), 2005 was passed. Coparcenary property here means a property that is inherited by any Hindu from his father or grandfather or great grandfather. Coparcener is a term used to describe any person who has the right to inherit the ancestral property by birth. 
• Changes done by the Hindu Succession (Amendment) Act, 2005- 
  • It amended the provision which took away the right of daughters to inherit coparcenary property.
  • In case a Hindu dies then the coparcenary property shall be allotted to the daughter as it is allotted to the sons. 
  • It established that the daughter of a coparcener shall be a coparcener by birth just as is the son. 
  • It cancelled the succession as per the survivorship rule and introduced Testamentary Succession and Intestate Succession. 
  • In a Hindu Undivided Family, a daughter is entitled to demand a partition as is the son. 
  • A daughter on her own will can dispose-off her share of the coparcenary property.
  • In case a partition happens immediately before a female coparcener dies then the children of such coparcener shall be entitled to inherit the coparcenary property.  
• The coparcener has the right to seek partition in the coparcenary property. This made it difficult to apply the law retrospectively. Such an application would lead to the reopening of many settlements done in the past. To avoid this problem, the court fixed 20th December 2004 as the date limiting the application of the amended law retrospectively. However, the court also stated that if a daughter still seeks partition to get a share culled out, it cannot be denied on the basis of an oral family settlement which is supported by public documents. 
• Hindu Succession (Amendment) Act, 2005 proved to be more gender-neutral. It cut off the aspects of gender discrimination and oppression of the fundamental right to equality of women associated with the 1956 Act. It enabled women to be the coparceners in inheriting the Mitakshara Coparcenary Property. It upheld the constitutional principles by providing equal rights to women. However, the Amendment Act came with its ramifications of legal ambiguity. 

Case of Prakash & Ors. v. Phulavati & Ors.

• In this case, the Hon’ble Supreme Court of India stated that “the rights of coparceners under the Amendment Act, 2005 apply to the living daughters of living coparceners as on 9th September 2005, irrespective of the birth date of daughters.” 
• It means that if the father is a coparcener who passed away before 9th September 2005, the living daughter of the coparcener would have no right to inherit the coparcenary property in such a situation.  
• This case threw light upon the interpretation of the legislation regarding the Amendment Act, 2005. It stated that the said Act shall not be applicable if the coparcener had died before the commencement of the Act. It means that in such cases the survivorship rule shall prevail and the daughter will not have any right over the coparcenary property. 

Case of Danamma v. Amar Singh

• In this case, the Hon’ble Supreme Court of India stated that if the father is a coparcener who passed away before 9th September 2005 and a prior suit has been pending for partition by a male-coparcener, then the female coparceners are entitled to a share. 
• The court observed that the provisions of Section 6 of the Amendment Act, are operational in a retrospective manner and they confer absolute rights upon the daughter to be coparcener since birth. This decision was in contrast to the judgement given in the Phulavati case. Thus, both the aforementioned judgments conflicted with each other and gave rise to a divergence of questions regarding the coparcenary rights of a daughter in inheriting the coparcenary property of her deceased father. This led to the grant of appeal in the Hon’ble Supreme Court of India. 

Case of Vineeta Sharma v. Rakesh Sharma & Ors.

• A 122-page judgement was given by the Hon’ble Supreme Court of India for this particular case. The court stated that women have been subjected to historical injustice when it comes to being a coparcener and they must be given equal rights irrespective of the prospective or retrospective application of the Amended Act, 2005. 
• Section 6(1)(a) of the Amendment Act, 2005 explains about the birthright of a coparcener i.e ‘unobstructed heritage’ under Mitakshara coparcenary to inherit the property. The court opined that the coparcener has a right over the ancestral property by birth and hence it is not essential for the father(coparcener) to be alive as on the date of the amendment. It is so because the coparcenary rights conferred by the daughter are by her birth, not by obstructed heritage. Thus, the concept that the father (coparcener) and daughter must be alive on the date when the Amendment Act,2005 came into force as laid down in the Phulavati’s case was overruled.
• The Hon’ble Supreme Court of India held that Section 6 of the Amendment Act, 2005 shall be applied retroactively. Explaining the concept of retroactive application of the Amendment Act, 2005, the court held that the said Act enables women to have the benefit of succession based on her birth. 
• Through this case, it was ruled that daughters have an equal right in the coparcenary property same as the son, even if the father died before the enactment of the Hindu Succession (Amendment) Act, 2005. 
• It also held that the rights under the said amendment apply to living daughters of living coparceners as on 9th September 2005, irrespective of the date of birth of the daughter. 

Conclusion

The Hindu Law regarding the succession of the property was first codified by the Hindu Succession Act, 1956. It dealt with the devolution of interest of the ancestral and self-acquired property of a Hindu dying intestate. The said Act, however, was discriminatory on the grounds of gender inequality and the oppression of the fundamental right to equality enshrined under Article 14 of the Indian Constitution. It conferred coparcenary rights only upon the lineal male descendants of the family and excluded women from having such rights. The reason for such exclusion was that someday the woman will get married and become a part of her husband’s family. Coparcenary property under the Hindu Law means the property which has been inherited by a Hindu from his father, grandfather or great-grandfather. The discriminatory approach towards the gender of a woman and the oppression of her fundamental rights called for an amendment of the Hindu Succession Act, 1956. Accordingly, Section 6 of the said Act was amended and it came to be known as the Hindu Succession (Amendment) Act, 2005. This amendment enabled women to become the coparceners same as their male counterparts. The Amendment Act, 2005, created ambiguity regarding the application of the provisions under it. It was unclear as to how the interpretation of law must be done due to two conflicting cases. The Phulavati’s Case of 2015 and the Danamma’s Case of 2018. The question was whether the Amendment Act, 2005 was applicable in a retrospective manner and whether the father (coparcener) and daughter must be alive on the date when the Amendment Act,2005 came into force. The case of Vineeta Sharma v Rakesh Sharma answered both these questions. The Hon’ble Supreme Court of India held that daughters have an equal right in the coparcenary property same as the son, even if the father died before the enactment of the Hindu Succession (Amendment) Act, 2005. It further held that the rights under the amendment apply to living daughters of living coparceners as on 9th September 2005, irrespective of the date of birth of the daughters. Women have been subjected to historical injustice due to the unavailability of their coparcenary rights and the ambiguity of the interpretation of those rights. The verdict given by the Hon’ble Supreme Court of India in the case of Vineeta Shama v Rakesh Sharma is a step towards gender justice and gender equality.  However, it took a long time for the evolution to take place regarding the coparcenary rights of women under the Hindu Law. 

References 

1. Prakash & Ors. v Phulavati & Ors. (2015) SCC Online SC 1114 
2. Danamma v Amar Singh (2018) 3 SCC 343
3. Vineeta Sharma v Rakesh Sharma (2020) – SCC ONLINE SC 641
4. Hindu Succession Act, 1956
5. Hindu Succession (Amendment) Act, 2005
6. Durga Das Basu, Introduction to the Constitution of India (LexisNexis, 21st ed. 2013) 
7. Supreme Court Clears The Air On Coparcenary Rights Of Daughters Under The Hindu Succession (Amendment) Act, 2005-
   https://www.mondaq.com/india/trials-appeals-compensation/977352/supreme-court-clears-the-air-on-coparcenary-rights-of-daughters-under-the-hindu-succession-amendment-act-2005 
8. Daughters have coparcenary rights by birth even if father died before the Hindu Succession (Amendment) Act, 2005 came into force-https://www.scconline.com/blog/post/2020/08/11/daughters-have-coparcenary-rights-even-if-parents-died-before-the-hindu-succession-amendment-act-2005-came-into-force/  
9. Daughters have an equal birthright to inherit property: Supreme Court- https://www.thehindu.com/news/national/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/article32325891.ece 
10. For Gender Equality in Ancestral Property, the Journey from 1956 Has Been a Long One- https://thewire.in/law/hindu-personal-law-gender-equality-ancestral-property-coparcenary-supreme-court 

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