Author: Pooja Thakur
"A son is a son until he gets a wife. A daughter is a daughter throughout her life."
Does a daughter’s right on coparcenary property have anything to do with social justice and equality or is it just a mere property right? This question has been answered by the Legislature and the Judiciary time and again despite the social resistance to a daughter’s right to inheritance. A daughter’s right on coparcenary property has seen a tremendous revolutionary evolution. With the judgment of the Supreme Court in Vineeta Sharma v Rakesh Sharma, this right of a daughter has been termed as an “unobstructed heritage” thereby clearing all roadblocks for the journey ahead.
For a clear understanding, this article will discuss the journey of a daughter’s right on coparcenary property in three timeline.
Prior to the Hindu Succession Act, 1956 (hereinafter referred to as HSA), a woman’s right to property varied from region to region as per the customary and Shastric laws. Baudhayana never considered a woman to be an independent entity capable of possessing or disposing property. He opined “the father protects a woman in her childhood, the husband during her youth, the son in her old age: the women ought not to have freedom.” Earlier, a Hindu woman was entitled to two kinds of property i) Women Estate which was a limited estate and ii) stridhan. A woman was never considered a part of the coparcenary property. Despite a lot of reluctance from a section of conservatives, the Hindu Succession Act, 1956 codified intestate succession laws mentioned in the Dharmashashtras. This codification was done consciously keeping the constitutional principles in mind while simultaneously not interfering with the religious matters. The key features of the HSA were:
Retention of the concept of Mitakshara Coparcenary where only males were coparceners
Retention of Doctrine of Survivorship with limited applicability.
Decoding Section 6 of HSA- Section 6 of the Hindu Succession Act, 1956 provided for the devolution of interest in Mitakshara coparcenary property. The devolution of interest of a coparcener who died intestate was to be governed by the doctrine of survivorship. The doctrine of survivorship dictates that upon the death of a coparcener his property will devolve up to three patrilineal descendants of the same ancestry. It should be noted that the doctrine of survivorship was applicable only when the deceased coparcener did not leave behind any female relative specified in Class I of the Schedule (which includes daughter) as exemplified by the proviso of Section 6. In a case where a female relative specified in Class I survived the deceased, the Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship.
The language of Section 6 speaks volume about the intention of the legislature to dilute the doctrine of survivorship thereby not rendering the daughters helpless. This effort was a good initiation with negligible fruits and the daughters were still not considered at par with the male coparceners.
The 2005 Amendment Act: A Path-breaking Reform
With the start of a new century, the society was ready to accept a reform in the Hindu Succession Laws. “The Law Commission of India, 174th Report on Property Rights of Women under Hindu Law” proposed to bring about the necessary reforms through an amendment in the HSA, 1956. In Chapter II of the report, the committee rhetorically questioned “Whether the Hindu Succession Act actually gave women an equal right to property or did it only profess to do so?” To fill in the gaps, the Hindu Succession (Amendment) Act 2005 (hereinafter referred to as Amendment Act) was passed by both the houses of the Parliament and came into effect from 9th September 2005. The key takeaway of the Amendment Act relating to daughter’s rights were:
Abrogation of Doctrine of Survivorship- Section 3 of the Amendment Act substituted Section 6 of the principal Act (HSA, 1956). The substituted Section 6 provides that when a Hindu dies after the commencement of the Amendment Act his interest in the joint Hindu family property would devolve by testamentary and intestate succession and not by doctrine of survivorship. Therefore, the Amendment Act of 2005 sought to remedy the injustice which the daughters had to face due to the doctrine of survivorship.
Recognition of daughters as coparceners- One of the most radical change brought about by the Amendment Act was the recognition of a daughter as coparcener by birth in a Hindu joint family governed by Mitakshara Law irrespective of her marital status. A daughter would now have the same rights and liabilities as that of a son in the coparcenary property. This was a tight blow to the banner holders who viewed daughters as “paraya dhan: the one who does not belong to her natal family” thereby depriving her of her rights. As a coparcener, a daughter is now entitled to demand partition, to dispose of her share through a testament and even take up the role of a Karta.
The Amendment Act tried to curb the discrimination against women and entrust social justice in the society. It is noteworthy that this bonafide move was an inspiration from the State amendments of Andhra Pradesh, Karnataka and Maharashtra.
Post 2005 Amendment Act
The 2005 Amendment Act sought to remove gender discrimination and give daughters their entitled dues. Section 6 of HSA was substituted to achieve this object. However, the courts soon started to face a difference in opinion with the interpretation of the substituted Section 6. This difference arose mainly from the interpretation of two phrases under substituted Section 6 i.e “On and from the commencement of the Amendment Act 2005” and “by birth”. The Courts faced two issues concerning the interpretation and both these issues are interlinked:
Whether the Amendment Act is retrospective or prospective in effect?
Whether the rights conferred to a daughter under the Amendment Act are subject to the living status of her father?
Rules of interpretation of statutes are useful servants but difficult masters. Prior to the landmark judgment of Vineeta Sharma v Rakesh Sharma on 11 August 2020, the Court gave varying interpretations of the substituted Section 6.
Prakash v Phulavati: The two judge bench of the Hon’ble Supreme Court exercising its appellate jurisdiction overruled the decision of the High Court and held that the Amendment Act was prospective in effect. The Court held that the intention of the legislature through the text of Section 6 clearly provided the Amendment Act to be prospective in effect as the rights conferred on a daughter of a coparcener is “on and from the commencement” of the Amendment Act. With reference to the second issue the Court held “that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born.”
Danamma @ Suman Surpur and Anr. v. Amar: The two judge bench of the Supreme Court in 2018 held that the Amendment Act was retrospective in nature, contrary to the verdict in Prakash v Phulavati. The bench did not deal with the proposition of the living status of the father per se. However, it simply stated that the right of a daughter as coparcener flows from birth akin to sons.
Vineeta Sharma v Rakesh Sharma: The confusion regarding the interpretation of the substituted Section 6 was put to an end by the three judge bench in this case. The bench made explicit what was already implicit in the Amendment Act. While overruling Prakash v Phulavati and partly overruling Danamma @ Suman Surpur and Anr. v. Amar, the Court held that the Amendment Act was neither prospective nor retrospective but retroactive in effect. Under a retroactive statute, the benefit of the rights claimed will operate in futuro (on and from the commencement of the Amendment Act) but this right will be based on some past incident (birth of the daughter). While dealing with the issue of the living status of the father, the Court held that the intention of the legislature was to position daughters at par with the sons. The Court effectively held that since the right of coparcenary is by birth, limiting this right by taking into account the living status of the father would be unnecessarily causing an obstruction to the daughter’s right.
Law plays an important role in social change. Reforms and social legislation are important to mould the society to the direction of growth and progression. The Amendment Act and the landmark judgment have together paved the path for equality and social justice. With respect to the issues dealing with right of the daughter as coparcener, all matters or appeals pending before any Court will now be decided in terms of the verdict of Vineeta Sharma v Rakesh Sharma. While this judgment has victoriously crossed the last hurdle to the status of a daughter in a coparcenary property, it is apprehended that it has also opened the gates to increased litigation. As rightly opined by Shri Shailendra Kumar, the Amendment Act along with the judgment might become a bone of contention between the family members and harm the relations of brothers and sisters. However, these problems should not come between the path of equality. Increased litigation can be done away with by pre-litigation mediation. Possibility and feasibility of mediation centers should be considered before flooding the courts with cases.
The verdict is delivered but there will be no change without the change in public opinion and social engineering. Therefore, with a sense of relief and hope the social status of daughters will improve as envisaged by the Constitution of India.