“Daughters must be given equal rights as sons. The daughter remains a loving daughter throughout life. The daughters as coparcener (shall remain) throughout life, irrespective of whether her father is alive or not,”

Justice Arun Mishra.
Over the years there has been conflicting views on daughter’s right to inherit the ancestral property. This article gives an extensive analysis of the amendment of the Hindu Succession Act, its interpretation over the years and daughter’s right to be a coparcener through a series of case laws.

Introduction

The right of inheritance initially differed from region to region, and even from caste to caste in the same region, according to the different governing schools of law. The Mitakshara School gives the son, grand son and great grandson the right by birth in the joint family property having an equal interest with the father. Whereas, the Dayabhaga School does not grant such rights to the son, grandson and great grandson till the father is alive. As per the Dayabhaga School, the father can dispose of the property at his own pleasure and after his death both separate and ancestral property devolves by succession or inheritance.

The Hindu Succession Act, which came into force in 1956, in its application to Hindus, Buddhists, Jains, and Sikhs provides the rules for succession and inheritance of a property in case of a person dying intestate. The Act governs ancestral property, that is, property inherited from the ancestors; and self-acquired property, or property acquired by a person himself distinct from the ancestral property. Every person of a family is a member but not every member is a coparcener. “Coparcener” is a person who presumes a right by birth in ancestral Hindu property.

daughters as coparcener

The Coparcener only has the right to demand partition in coparcenary property. The act initially stated that coparcenary rights in an ancestral property are only granted to the male lineage of the coparcenary. The rule of survivorship determined the transfer of the property on the death of a coparcener. The male member enjoyed the interest in the coparcenary property throughout the lifetime and upon the death of the coparcener, the share is immediately transferred to the surviving coparcener.

A person can divide only his self-acquired property by way of forming a Will in which the property can be transferred to the son or daughter or any other person. Ancestral property on the other hand cannot be transferred by way of a will. 

The Hindu Law of Inheritance was the earliest to recognize the rights of three-generation of women in the scheme of inheritance. Later when the Hindu Succession Act, 1956 came into force it did not recognize woman’s coparcenary right of Inheritance. The Act was hugely criticized on this point of discretion. It was also argued that it was against the scope of equality which is the guaranteed fundamental right. This led to the amendment of the Act in 2005.

The Hindu Succession (Amendment) Act, 2005

daughters as coparcener

This revolutionary Amendment removed the gender discrimination barrier from the Original Act, it omitted the survivorship rule and introduced the testamentary and intestate rule.  According to the Amendment, the interest of a Hindu who dies after the commencement of the Amendment shall pass by way of testamentary or intestate succession and not by survivorship rule.

The Amendment introduced four classes of heirs by which an intestate property can be divided. The class I heirs included widows, sons, and daughters of the person dying intestate. They all have rights to receive equal share of the property i.e. if a Hindu dies intestate leaving behind his widow, two sons and one daughter then each one of them shall receive 25% share of the property. The Amendment brought the following changes to the law prescribed by the Original Act:

  1. The daughters as coparcener (was recognized) by birth in the same manner as the son.
  2. Upon the death of the ancestor, the coparcenary property shall be allotted to the daughter as it would be allotted to the son.
  3. The daughter has the right to dispose of her share in the coparcenary property.
  4. In case when the daughter dies before partition, her surviving children will become a coparcener in such property. They will get the share the same as the pre-deceased daughter if she had been alive at the time of the partition.
  5. The daughter has the right to demand partition of the HUF the same as the son.
  6. Daughters are equally liable to follow the obligations under the Hindu law as that of the sons.

Section 6(4) of the Amendment stated that the provision of Section 6 is not retrospective as both the rights and liabilities are from the date of commencement of the Amendment. The amendment came into force from 9th of September, 2005. There was a question raised if the father needed to be alive on the day of the commencement of the Amendment for the daughter to obtain such right. The following are the cases that eventually answered this question.

Case Analysis

daughters as coparcener

Prakash & Ors. v. Phulavati & Ors., (2016)

Issues & Arguments

In this case the Respondent (Phulavati) had filed an appeal in Supreme Court for partition and possession in the ancestral property acquired by the Respondent’s father and also some share in another property. The Respondent’s father died on the 18th of February, 1988 upon which the respondent has acquired her share in the ancestral property. In the appeal filed before the Supreme Court, the Appellants (Prakash) contended that the amendment came after the death of her father, therefore, she is not entitled to the claim.

Decision

The Supreme Court rejected the contention of the respondent that the daughter has the right in the ancestral property by birth irrespective of the date of death of her father. Therefore, the two-Judge Bench of the Supreme Court headed by J Anil Dave and J A. K. Goyal held that the coparcenary rights shall only be granted to the daughter if the father was alive on the day of the Amendment.

Danamma @ Suman Surpur vs Amar, (2018)

Issues & Arguments

The two daughters of Mr. Gurulingappa Savadi had filed an appeal in the Supreme Court against the decision of the lower court. Mr. Savadi had died in the year 2001 leaving behind his widow, two daughters, and two sons. Initially, the Respondent (Amar) had filed the suit for partition in the lower court stating that the Appellants (Danamma @ Suman Surpur) were not eligible to acquire their share in their father’s property as they were born before 1956 when the act came into force and also because they are married.

Whereas, the Appellants contended that they were entitled to their share as being the daughter and because their father died after the act came into force. The lower court ruled in favor of the respondents which led to the filing of Appeal by the Appellants in the Supreme Court.

Decision

The two-Judge Bench of the Supreme Court headed by J A.K. Sikri and J Ashok Bhushan upholding gender equality in the law of inheritance held that the daughters have the same right of Inheritance as the sons as per the Amendment for the partition of the commonly hold property.

After this Judgment, a confusion was again created as both the judgments were headed by a two-judge bench and were contradictory to each other. The confusion is now wiped off by a judgment passed by the three-judge bench in Vineeta Sharma v. Rakesh Sharma, 2020.

Vineeta Sharma V. Rakesh Sharma, 2020.

Issues

The issues raised in this case was that whether a daughter shall be entitled to receive her share in the coparcenary property as a coparcener if her father passed away before the passing of the Amendment. This issue arose because of the conflicting judgment in the aforementioned cases.

Decision

The three-judge bench headed by J Arun Mishra, J S. Abdul Nazeer, and J MR Shah observed that the Amendment of 2005 was brought to wipe out the gender discrimination effect of the act. The Judgment begins with a discussion on the Original Hindu Law following the explanation of important terms like the Joint Hindu Family system, Coparcener property, and Coparcenary. The bench strikes down the observations made in Prakash & Ors. v. Phulavati & Ors. and held that Coparcenary right is given by birth.

The same is the case if the Coparcener is a daughter. Therefore, as the right is not by dint of inheritance the Coparcener father doesn’t need to be alive on the date of the Amendment for the daughter to receive her share in the coparcenary property. The unobstructed heritage in the property takes place at birth while the obstructed heritage takes place upon the death of the owner. Section 6 by birth gives unobstructed right therefore, it is not subject to the coparcener father’s living status.

Exception To The Rights Of Coparcener

daughters as coparcener

The Coparcenary right is not absolute. A person is disqualified from inheriting the property when they commit murder. Therefore, a coparcener proven guilty of murder shall not have the right to acquire their share in the coparcenary property. In case when a relative convert from Hinduism they are still eligible to receive their share of the property however, their descendants are not eligible to inherit unless they convert to become a Hindu before the death of the relative.

For example, if “A” a Hindu convert into another religion. The conversion will not disqualify his or her right to acquire the Coparcenary property. But their children shall not have the right to inherit such property unless they convert into Hinduism before the death of “A”. 

Conclusion

Women in India were always considered inferior to the male members of the family. Even the laws recognized limited or no rights of women compared to men in the same case. Before 1956, the devolution of ancestral property depended on the Shastric laws which differed for different regions and castes. Upon the commencement of the Act in 1956 the property was devolved based on survivorship rule. It granted the three surviving generations of male lineage the coparcenary right in the property. It did not recognize women as a coparcener in the coparcenary property. Later, the Act was amended by in 2005.

It amended section 6 of the Act by recognizing daughters as coparcener by birth in the coparcenary property. It strikes down the survivorship rule and introduced the testamentary and intestate rule. However, there was confusion regarding the applicability of the provisions in the case where the father dies before the commencement of the Amendment. This confusion was cleared by the judgment passed in Vineeta Sharma v. Rakesh Sharma. It stated that daughters shall acquire the right even if her father dies before the commencement of the Amendment as the coparcenary right is given by birth. 

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