Supreme Court: Equal Birth right in Coparcenary property for a Daughter

In ancient India, we had the concept of Hindu Joint Family and this family arrangement has over the years gained immense legal importance in India for Succession and division of Property.

Meaning of Coparceners and Coparcenary property:

In ancient India, we had the concept of Hindu Joint Family and this family arrangement has over the years gained immense legal importance in India for Succession and division of Property. This system was divided into 2 schools Mitakshara and Dayabhaga School of Hindu law. Thus, the fundamental importance of a joint family is that it traces the origin of an individual, who would be the common predecessor. However, it is pertinent to note that this Joint family is a single ancestral unit and not a legal person, even if it traces back to the original common ancestor. A Coparcener is a person who gains a legal right in this parental property by birth. Therefore, a Hindu Undivided Family is a group of family people, who are the lineal descendants of a common predecessor and includes the eldest member and the three generations of a family. Thus, these members who are males generally were known as coparceners.
 
In Hindu Joint Family system viz: the Mitakshara and Dayabhaga School a woman was not given a birth right in the family property like a son. Conversely, under the Mitakshara school a son soon after his birth acquired a right and interest in the family property. No daughter was a member of the coparcenary but son, grandson and a great-grandson were the coparceners by birth in the family. On the contrary, under the Dayabhaga School, the male member does not acquire an interest in the property by birth, but his right arises only on the death of his father and he gets property as is extant or contemporary even though ancestral. This concept of inheritance is called by being an heir and not by survivorship.
 
First attempt to give Rights to daughters in Coparcenary property- Hindu Succession (Amendment) Act, 2005

This Amendment Act 2005 was meant for removing gender discriminatory provisions, as they were basically against the tenets of the Constitution of India and highly discriminatory, as regards property rights in the Hindu Succession Act, 1956. Therefore, it was regarded as a revolutionary step in the field of Indian legislation regarding rights of women in India. The amendments in this Act aimed at empowering the women to get a share in the coparcenary property, which was unheard of in the Hindu Schools before this enactment. Under the Amendment Act some rights were given to the daughters/widows etc as designated below. These changes were more for the Mitakshara school and the features of the Amendment Act are as under:
 
  1. The daughter by birth was considered a coparcener in her own right in the same manner as a son under the Mitakshara school. She had equal rights as the son born in the family. However, she was also subjected to same liabilities as the son for the  said coparcenary property.
  2. While alienating the said property by either by partition or through testamentary manner and the same was done before 20th December, 2004 the same cannot be invalidated after the amendment of Section 6 of the Act, as the amendment had a prospective amendment.
  3. Even in notional partition the daughter gets equal share as the son. However, the share of the pre-deceased son or a pre-deceased daughter gets allotted to the surviving child in such cases; and on the other hand the share of the pre-deceased child of a pre-deceased son or of a predeceased daughter gets allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as applicable.
  4. After the enactment of the Amendment Act of 2005, there shall be no obligation on the son, grandson or great-grandson to recover any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law.
 
Before the enactment of this Amendment in 2005, once a daughter got married, she concluded being a part of her father's HUF. The daughters were entitled only to a share of their father’s inheritance and were not dependent coparceners like the sons in the family. However, from September 9, 2005, daughters born to any coparcener of a joint family were deemed to be a coparcener and would be conferred equal rights and liabilities under the law. Therefore, after September 9, 2005, when the Hindu Succession Act, 1956 was amended by the Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, was considered a member of her father's HUF and could be even selected as a 'karta' of the property. Therefore, it granted daughters equal rights which only the sons would enjoy.
 
However, the Act just had prospective effect and was not applicable to any division before the Amendment Act came into force.
 
Supreme Court paves the way for retrospective applicability:
 
The Supreme Court on 11th August this year, in the case of Vineeta Sharma vs Rakesh Sharma and others held that even daughters have equal coparcenary rights in HUF properties, heedlessly of whether the father was alive or not on 9 September 2005 being the date on which the amendment of 2005 came into effect. A Bench comprising of Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah stated that “The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities under Section 6 of the Hindu Succession Act, 1956, is acquired by birth,”

The Supreme Court was of the opinion that interest in the HUF property is acquired by birth and it was not by devolution of interest. And it was only when the female Class I heir is left, or in case of her death, male relative is left will the share of the deceased coparcener will devolve by deemed Partition. Hence, the reference was answered conferring status of coparcener on the daughter born before or after amendment in the same manner likewise and with the same rights and liabilities as her male counterpart. Therefore, it held that the right in coparcenary is by birth and so it was not necessary that the father coparcener should be living as on 9.9.2005.
 
Accordingly, the verdict makes it clear the amendment to the Hindu Succession Act 1956 granting equal rights to the daughters to inherit the coparcenary property had retrospective effect and was not confined to the date of 9th September 2005, being the date on which the 2005 Act was enacted.  Thus, the Apex court by this ruling overruled its own earlier 2015 decision, whereby it had originally held that the rights under the amendment are applicable to living daughters of living coparceners as on 9 September, 2005, irrespective of when such daughters were born. A daughter can claim her rights being born earlier with effect from 9.9.2005, with savings as provided in Section 6(1) as to the nature or alienation, partition or testamentary disposition, which had taken place before 20th day of December 2004. It is made obvious by the Supreme Court that the provisions of the replaced Section 6 are required to be given full effect, irrespective that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

Conclusion:

The legal perplexity to declare the daughters to have equal inheritance rights to those of sons from properties of fathers, grandfathers and great-grandfathers right from the codification of the law in 1956 is cleared by this Judgment. Therefore, this Judgment  would create an atmosphere of equality, irrespective of any cut-off date for the operation of the law that a daughter would be a coparcenary in the HUF property just like the male counterparts. This is definitely a step in the direction of progress as there would be equality as regards inheritance and division of ancestral property retrospectively.