Tracing the history of coparcenary rights of daughters up to the recent verdict in Vineeta Sharma vs. Rakesh Sharma

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This article is written by Alka, pursuing a Certificate Course in Real Estate Laws from Lawsikho.

Introduction

Let’s play a game…

You have two blocks –

  • One is red and weighs 20 kg.
  • Other is blue and weighs 20 kg.

Which one is heavier?

“What a silly question, obviously both weigh the same.”

WRONG!

The first block is heavier because it is red.

Don’t be sad let us try another one.

You have two pipes –

One is a 5 feet long steel pipe.

Another is a 5 feet long copper pipe.

Which one is longer?

“Both are of the same length”

WRONG AGAIN!

The second one is longer because it is made up of copper.

By now you must be thinking where these logics are coming from.

Don’t worry! The next question will clear your doubts.

You have two children –

  • One is a boy
  • Another child is a girl.

Upon whom the ancestral property will be devolved?

Sounds tricky?  Let me make it a little easy.

Here is the hint – “RIGHT TO EQUALITY” Article 15 of the Indian Constitution prohibits the discrimination of citizens on basis of religion, race, caste, sex or place of birth.

Will you say the property will be devolved equally?

Disregarding the fundamental right to equality we witness disparity in inheritance rights based on gender in India since ages.

However, according to the law, about fifteen years ago, in 2005 the daughters were assured equal inheritance rights as of sons in the father’s ancestral property. But still, there was some confusion and controversy on various levels regarding the amendment.

Lately, the apex court had finally ended this confusion and controversy by a landmark judgment in Vineeta Sharma vs Rakesh Sharma on 11 August 2020.

In this article, we will trace the trajectory of coparcenary rights of a Hindu daughter and see how these rights evolved over a period of time.

But first things first, let’s discuss what coparcenary rights are?

What are coparcenary rights

In a Hindu family, there can be two types of property –

  1. Self-acquired or self-earned property;
  2. Joint Family property and ancestral property.

Coparcenary is an important concept regarding the Joint Family property of a Hindu joint family. Coparcenary is a smaller unit of a Hindu joint family. A Hindu joint family can have several members, but not all members can be considered as coparceners. A coparcener is a term used for such members of a Hindu joint family who can assume heirship on the Joint Family property. Such joint-heirship constitutes a coparcenary.

Etymology of coparcenary rights: customary laws

Before codification of Hindu law, people are governed on the basis of diverse shastric and customary laws which are varied based on regions and castes. Such variation in practice led to the emergence of various schools of thought. Among those the most influential schools were –

  1. The Mitakshara School
  2. The Dayabhaga School 

Although both the schools held similar opinions about the inheritance of deceased property by the sapindas only, the difference arose as to how the concept of sapindas should be interpreted in order to address inheritance issues. 

The literal meaning of Sapinda is having a common pinda

Mitakshara School

However, the Mitakshara School interpreted the meaning of pinda as the particle of the body. Hence Sapinda according to the Mitakshara School meant a person associated with a particle of the same body, which means a blood relation.

Accordingly, it follows the law of inheritance based on the Principle of Propinquity (on the nearness of blood relationship) and the doctrine of survivorship which means property devolves by survivorship post-death of the common ancestor.   

Mitakshara coparcenary

As far as the coparcenary rights are concerned, in Mitakshara School, it arises by birth hence coparcenary property is inherited as unobstructed heritage (Apratibandha Daya). As a matter of practice, the lineal descendant of a common ancestor in the male line up to four generations is considered as coparcener and is capable to inherit and acquire an absolute share out of the undivided property.  On the other hand, the women didn’t have any coparcenary rights hence not entitled to acquire the ancestral property.

Dayabhaga School 

The Dayabhaga School interpreted the meaning of pinda as oblation (offerings to god such as funeral cakes). Hence, Sapinda according to the Dayabhaga School meant the persons related to each other by pinda, which literally means a ball of rice offered at the performance of obsequial rites.

Correspondingly, it follows the law of inheritance based on the principle of religious efficacy or spiritual benefit and the doctrine of succession which means the person conferring more spiritual benefit based on the doctrine of oblations is entitled to inherit the property.

Dayabhaga coparcenary

Unlike Mitakshara School, the coparcenary rights under the Dayabhaga School arise after the death of the ultimate head of the family hence coparcenary property is inherited as obstructed heritage (Sapratibandha Daya). The Dayabhaga School being a little liberal with ideas drew no fundamental difference between males and females and extended coparcenary rights to women also. Hence females including widows and daughters were capable of inheriting the ancestral property.

Position of daughters in pre-independence legislation regulating the inheritance

Hindu Law of Inheritance Act, 1929

Hindu Law of Inheritance Act, 1929 was the primitive piece of legislation governing the intestate and unwilled succession of separate property. Although the Act didn’t make any far-reaching change in the right of inheritance but it brought females into the mainstream by conferring inheritance rights to some extent.

Hence, it created a limited restriction on the prevailing rule of survivorship by granting inheritance rights to three female heirs, namely – 

  1. son’s daughter;
  2. daughter’s daughter;
  3. sister. 

Certainly, the Act brought some remarkable changes to improve the position of daughters, but it was not thoroughgoing enough to address and eradicate the flaws and establish gender-neutral inheritance rights.

Inheritance rights of a daughter under the Hindu Succession Act, 1956

The post-independence era has brought about a substantial modification in pre-existent laws regulating the inheritance concerning Hindus. A central legislation namely Hindu Succession Act, 1956 was codified to amend and regulate the laws related to intestate succession among Hindus along with Buddhists, Jains, and Sikhs and followers of Arya Samaj, Brahmo Samaj.

But as far as coparcenary rights of daughters were concerned, the newly enacted Hindu Succession Act, 1956 retained the concepts of the Mitakshara School. Section 6 of the Act provided that only male members of a joint Hindu family will be considered as coparceners and ultimately property will devolve according to the rule of survivorship.

On the other hand, despite the bold assertion and endorsement of the right to equality, daughters have been deprived of coparcenary rights.

Let us understand the scheme of devolution of coparcenary property under the Hindu Succession Act, 1956 with the help of an example –

The chart shows the structure of a Joint Hindu Family.

Where, A is the owner of the property and other members are related to A as –

W – Wife

D – Daughter

S – Son

SW – Son’s wife

SD – Granddaughter

SS – Grandson

SSW – Grandson’s wife

SSS – Great-grandson

Going by the Section 6 of the Act coparcenary rights are only conferred upon male lineal descendants of the same ancestor up to four degrees. Therefore, in the above example only A, S, SS, SSS hold the status of coparceners hence entitled to inherit the coparcenary property.

Although, proviso of Section 6 carved out an exception to protect the property rights of female heirs such as daughters, widow, mother etc having proximate relation with the deceased male coparcener. It states that if the deceased member survived by a female relative as specified in Class I of Schedule I. The interest of the deceased member in the coparcenary properties would devolve onto such female relatives.

Provision of Section 6 further states that to give effect to inheritance the share of the deceased member is to be ascertained by way of creating a legal fiction of notional partition as on the date of death and further dividing that share equally into the surviving heirs. Therefore, devolution will not take place as per the rule of survivorship but according to the rule of succession as stated in the provisions of testamentary or intestate succession provided in the Act.

For example, if a Hindu male A died leaving behind him a son S and a daughter D. Then in this case if we would have applied the rule of survivorship the entire property would have devolved upon the son hence, a great injustice for the daughter. To address this issue provision of notional partition was carved out. Accordingly, after the death of A property will be divided as if A is alive and share of A i.e. notional share will be then divided equally between S and D. Therefore, as a whole S will get 3/4th share (own ½ share + ¼ from A’s share) and D will get 1/4th share.

In such a way, however, daughters were deprived of coparcenary rights, but they were provided by inheritance rights to a limited extent.

Criticism of the Hindu Succession Act, 1956 and state amendments

The main criticism of the act was also its biased approach since our constitution talks about non-discrimination and equality notwithstanding such utterly discriminatory provisions are being enacted.

Further, to tackle the criticism and pave a pathway for gender-neutral laws many states such as Andhra Pradesh (in 1985), Tamil Nadu (in 1989), Karnataka (in 1994) and Maharashtra (in 1994) in their concurrent legislative jurisdiction amended the Section 6 to give the coparcenary rights to daughters by birth. Levelling the gender gaps, daughters were kept at the same footing as sons. They were equipped with the same rights, duties and incidents of Coparcenary property as of sons by birth.

But these rights were only restricted to unmarried daughters. These amendments failed to extend these coparcenary rights to a married daughter where such marriage took place before the amendment.

Hindu Succession (Amendment) Act, 2005

Although these state amendments uplifted the position of daughters by securing the coparcenary status to them to an extent, a synonymous piece of legislation at the central level was needed of the hour.

To address the issue and to extend the coparcenary rights nationwide, irrespective of the marital status of daughters the 2004 amendment bill was assented and passed by both houses of the parliament to give a shape to The Hindu Succession (Amendment) Act, 2005 which came into force on 9th September 2005.

Under the 2005 amendment provisions of Section 6 of the Act were altogether removed to insert the provisions granting equal rights and liability to the daughters in coparcenary property by birth irrespective of their marital status.

Thus the amendment conclusively abrogated the rule of survivorship and introduced the rule of succession via the concept of testamentary and intestate succession. In case of testamentary succession, any person can design the devolution scheme of their self-acquired property through the will hence assets will be disposed off according to the wish of the testator. Bearing on devolution of ancestral property or joint family property and unwilled property intestate succession comes into effect.

To give effect to intestate succession, The Hindu Succession (Amendment) Act, 2005 introduced four classes of heirs and the daughters were given equal status as the sons under class 1 heirs.

Major changes in status coparcenary rights of daughters after the 2005 amendment Act:

  1. Daughter of a coparcener shall have equal rights and liabilities by birth in the same manner as the son.
  2. Similarly, daughters can also demand a partition of joint family property.
  3. At the time of partition, a daughter will get a share equal to son.
  4. Daughters can also dispose of their absolute interest in coparcenary by executing a will.
  5. For instance, if a female coparcener dies before partition, then in such case her children are eligible to receive the share.

Variance in interpretation and continuing confusion 

No doubt, the 2005 amendment act proved to be a milestone in addressing the gender injustice and ensuring equal coparcenary rights to daughters as well, but there was some confusion due to variation in interpretation of the provisions with regard to its retrospective effect.

Since the enactment date of The Hindu Succession (Amendment) Act, 2005 was September 9, 2005, the main confusion revolved around the issue that whether the coparcener father or his daughter needs to be alive on the enforcement date i.e. September 9, 2005, for applicability of the Section.

Prakash v. Phulavati

Addressing this question, the division bench of Hon’ble Supreme Court in Prakash v. Phulavati (2016) 2 SCC 36 (see here) held that the Section 6 of Hindu Succession (Amendment) Act, 2005 assuring coparcenary rights to daughters, cannot be applied retrospectively.

In the present case, the Phulavati (daughter of the deceased) filed a suit for partition and separate possession in the coparcenary property in 1992. Meanwhile, the suit was pending, the Hindu Succession (Amendment) Act, 2005 was passed. Therefore, the plaint was amended in order to reap the benefit arising out of the amendment Act.

After the trial court denied the right, the appeal was filed in High Court. Where the High Court reversing the decision of trial court held that the amendment act would be applicable in the present case hence, Phulavati is entitled to separate share in coparcenary property.

Thereafter, the defendants appealed the case in the Supreme Court by contending that the provisions under Amendment Act assure coparcenary rights only to the “daughter of a coparcener” and concerning the present case, the father was not alive at the execution date of Amendment Act hence, not a coparcener. Therefore, Phulavati not being the daughter of a coparcener is not entitled to claim the benefit of the amendment.

Finally, a two-judge bench of the Supreme Court interpreting the provisions of Section 6 of the Act held that the amended law shall apply only on the “living daughters of living coparceners”. Hence, the Hindu Succession (Amendment) Act, 2005, cannot be applied retrospectively, despite being a social legislation.

Danamma @ Suman Surpur vs. Amar

Thereafter, another issue was raised in the case of Danamma @ Suman Surpur vs Amar (2018) 2 SCC 36 (see here) regarding whether the amendment will be applicable in the cases where the daughter was born before the execution date of the Amendment Act.

In the present case, in 2001 Mr Gurulingappa Savadi died intestate leaving behind his widow (Sumitra), two sons (Arun Kumar and Vijay) and two daughters.

A year later, in 2002 the grandson of the deceased named Amar S/o Arun Kumar filed a partition suit of the family property.

In the plaint, it was stated that property was in the possession of two sons and widow of the deceased and also pleaded that the daughters of the deceased were married and at the time of marriage, they were given gold and money equivalent to their share hence no longer entitled to claim the share.

Opposing this, the daughters of the deceased filed a suit claiming the share in the family property.

The trial court in its judgment held that as the daughters were born before the enactment of Hindu Succession Act, 1956 are not entitled to any share in coparcenary property. The view was upheld by the high court in appeal.

Afterwards, an appeal was filed in the Supreme Court. A two-judge bench of the apex court in its judgment reversing the decision of the trial court and the High Court, upholding the right to equality granted the equal status of a coparcener to the daughters in the same manner as the son.

What’s the present situation

There was a state of confusion and uncertainty concerning the retrospective application of amendment because there was no consensus in the previous judgments of the Supreme Court. In fact, more or less the judgments were contrasting; consequently, it gave rise to a state of duality and uncertainty.

Vineeta Sharma vs. Rakesh Sharma & Others

The confusion was finally settled as the similar questions were raised before the Hon’ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma & Others (see here). Keeping in mind the contrasting view exhibited by the co-equal benches in the above mentioned two verdicts, to settle the prevailing anomalies, the reference was made to a larger bench consisting of three judges.

The primary issue was whether a daughter is entitled to coparcenary rights by birth or from the enactment date of Amendment Act and whether the father needs to be alive at the execution date i.e. September 9, 2015, to activate the provision of the Amendment Act.

Answering the issue, whether the amended Section 6 will have retrospective effect or prospective effect Hon’ble Supreme Court categorically held that it will be neither retrospective nor prospective but retroactive in nature hence it will operate from a past event i.e. the birth of the daughter.

Therefore, the coparcenary right of the daughter will arise from the date of birth itself and not from the execution date of the Amendment Act irrespective of the fact whether the father was alive at the execution date or the daughter is born before the Amendment Act came into existence. Nature of coparcenary rights of daughter shall be as same as the sons and daughter will have an equal share in the coparcenary property as of sons in its true sense.

But one exception to the rule is that, if the settlement is taken place in a partition suit prior to 2005 through a registered deed, such case cannot be reopened once implemented. Likewise, when a final order with reference to partition suit has been passed by the competent court, the case cannot be reopened. But if only a preliminary order has been passed, the case can be reopened.

In what situation a daughter can reopen the case?

A daughter can reopen a case which was settled before 2005 if she was denied her legal right to inherit her legitimate share or if she was not admitted as a coparcener during the partition suit. For this, she would need to challenge the correspondent document or decree giving effect to such partition.

Further, if the consent to partition or settlement deed was taken forcibly under duress then such partition can be made void if duress on her part is proved. But indeed, it will be subject to the effect of limitation. Furthermore, if the daughter was acknowledged as coparcener and she has accepted the settlement through her free consent, then in such case even if she has received her share or not, such deed would be binding on her.

The way forward

If we get back to our question, upon whom the coparcenary property will be devolved, the son or the daughter? Will both get an equal share?

After the verdict in the Vineeta Sharma case, the answer is indeed. Both the son and the daughter will get equal share in said property. Undeniably, the verdict in the present case is a progressive step towards gender equality. 

But hold on, before we celebrate let’s try to examine the situation a little closer. Have we achieved gender-equality or is this pseudo-equality. Are we still living in a paradox? To clear the picture let me modify and add a third option to the above question.

What if a child who is transgender comes into the picture? Will there be an equal division of share? Forget equal, will a transgender child get any amount of share in the property?

Important to note that in National Legal Service Authority v. Union of India, AIR 2014 SC 1863 the apex court had provided the LGBTQ community with the status of ‘Third Gender’ citizen of India. Following this judgment the Transgender Persons (Protection of Rights) Bill was introduced in Lok Sabha in the year 2016. 

Aftermath, people of the transgender community were provided by various rights but as far as inheritance rights are concerned Hindu Succession Act only includes binary gender i.e. male and female as heirs for the purpose of succession hence transgender people are denied the legal right to inherit property.

But recently in August 2020 UP government through UP Revenue Code (Amendment) Act, 2020 breaking the binary box of gender identity provided the Third Gender with the status of a family member of the landowner. Consequently, now they can rightly inherit agricultural land. It’s a progressive step indeed. Synonymous legislation at the central level is much needed.

Conclusion

Evidently, various laws in India are backed by a patriarchal mindset; one of the examples are succession laws. Despite equality being enshrined in supreme law of the land as a fundamental right, gender equality was far from being a reality. When it comes to coparcenary rights, sons were always preferred over daughters. The situation remained unchanged until The Hindu Succession (Amendment) Act, 2005 came into existence which conferred equal coparcenary rights to the daughters as the sons.

But there was some uncertainty as to the retrospective application of the Amendment Act. Further, the contrasting judgment of the Supreme Court escalated and intensified the prevailing confusion.

Finally, the Supreme Court in Vineeta Sharma v. Rakesh Sharma & Ors. concluded that the Amendment act shall have a retroactive effect and daughter shall have equal coparcenary right as the son by birth outrightly. The verdict is a major step towards gender equality, but we have far more to go. We will achieve gender equality in its true sense when the inheritance and succession rights will be extended to the transgender community also.

 References

  1. https://www.lawyersclubindia.com/articles/The-Concept-of-Coparcenary-Its-past-present-and-Future-in-the-Hindu-concept-of-Joint-Family-8193.asp
  2. https://thewire.in/law/hindu-succession-act-women-supreme-court
  3. https://www.casemine.com/judgement/in/5790b398e561097e45a4e478
  4. https://www.escr-net.org/caselaw/2018/danamma-suman-surpur-another-v-amar-others-civil-appeal-nos-188-189-2018
  5. https://www.indialawjournal.org/archives/volume8/issue-1/article7.html

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