Author: Aarushi Chawla,
Vivekananda Institute of Professional Studies, Delhi
Gender inequality has been prevailing in the society for ages now where women are placed at a disadvantageous level to their male counterparts. One such example is the right in coparcenary property. A Joint Hindu family consists of lineal descendants from a common ancestor along with their wives and unmarried daughters and a coparcenary is a small unit within it. Under classical law, it was only the male members of the family were termed as coparceners in the Joint Hindu family property. Coparceners have the right in the coparcenary or ancestral property, the right to demand partition along with the right to challenge unauthorized alienation. It is defined as the right that flows from the last holder of property (senior-most male member), a continuous chain of three generations. The idea behind providing only the male members which a coparcenary right was that the ones who could offer spiritual ministrations to the father should only have right in the property. But such rules and regulations that completely excluded females from the right in the ancestral property have always been a debatable issue. The rules are in complete negation of the fundamental right under Article 14 of the Indian Constitution. Even after the passing of the Hindu Succession Act,1956 (referred to as ‘the Act’) the females of the family did not have a right in the coparcenary property but some classes of women in the family were entitled to get a share in the property even before 1956. Such share in property was provided only when partition took place in the family. Various states such as Andhra Pradesh in 1985, Tamil Nadu in 1989 and Maharashtra and Karnataka in 1994 provided unmarried daughters right in the coparcenary property. The Kerala joint family abolition act, 1975 also granted inheritance rights to the daughters. The Hindu Succession Act, 1956 which was largely rested by Section 6 said that when a male died after the Act came into force, his interest in Mitakshara coparcenary property will flow to the surviving coparceners but not under the act. The said section also added a proviso that if a deceased (male coparcener) is survived by class I female relative then the property would devolve by testamentary succession. The act by its enactment failed to address the discrimination against women.
CHANGES IN THE AMENDMENT AND JUDICIAL INTERPRETATION
The amendment in the Hindu succession act, 1956 came into force on September 9, 2005, and made significant changes to section 6 of the act. The amended section 6 said that daughter of a coparcener will be a coparcener by birth and will have the same rights as that of a son. The amendment was welcomed by great hopes and aspiration but the confusing judicial interpretation of the words “daughter of a coparcener” raised eyebrows. In Prakash v. Phulavati, it was held by a two-judge bench of Supreme Court that if the father (coparcener) had died before 9.9.2005 then the daughter of the coparcener would have no right in the property and it is irrelevant whether the daughter was born after the aforesaid amendment or not. In Danamma @ Suman Surpur v. Amar, the father (coparcener) passed away in 2001 and the son filed a suit for partition in 2002 and contended that daughters were not entitled to share in the property as father had passed away before the amendment. The two-judge bench of the apex court applied the view as laid in the Phulavati’s case with a different principle. It said that a suit does not become final by a preliminary decree and its finality is ensured only after a final decree is passed. And in the present case, the preliminary decree was passed in 2007 and therefore the daughters were entitled to share in the property. Upholding the Danamma case, the court relied upon the judgment passed in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr, where it was held that rights of a daughter under the amended Section 6 are not lost merely because preliminary decree has been passed in a suit for partition. The cases created unprecedented confusions and thereby a three-judge bench of Supreme Court settled the view on August 11, 2020.
The three-judge bench led by Justice Arun Mishra in Vineeta Sharma v. Rakesh Sharma & Others clarified the position and held the following conclusions:
· Daughters’ right in the coparcenary property will be treated in the same way and at par with the son. Daughters’ right in the property is like “unobstructed heritage” and it is granted by “birth” thereby, not affected by the fact whether the father (coparcener) died before or after the aforesaid amendment. The court laid down that the death of the father is only relevant to the extent of share in the property, as in joint family property shares are fluctuating and are determined by birth or death of a coparcener.
· Though the daughters could claim right only after the date of the amendment and any transaction made before December 20, 2004, will not be affected. The same is said expressly in Section 6(1) of the Act.
· Oral partition is not legally acceptable as per amended Section 6(5) of the act unless it is supported by public documents. The provision has the clear intention of protecting the daughters of their rights as a coparcener.
· The earlier Section 6 as per the proviso created a “statutory fiction” in case a male coparcener was survived by a Class I female relative. The bench also clarified on this and said that irrespective of any statutory fiction which has been affected before the amendment, the new provision will be implemented in any pending proceeding or appeal.
· The decision by the bench cleared all doubts for the term “daughter of a coparcener” and the rulings in Phulavati and Danamma case also stood overruled.
The recent ruling of the court in 2020 is a milestone for the rights of women and the discrimination that they have been facing for ages. The concept of daughters not being granted a coparcenary right in the property has its roots in the concept of marriage where a woman upon marriage is completely secluded from her place of birth. This judgment of the apex court has created a renowned change and discrimination towards the female gender seems to be fading which is need of the hour. This is just a small fight won but a lot is still to be done to uplift women at par with men to completely eradicate disparity between them.
1. Karta being the head of the family have the right to alienate the property but the same was to be made within some prescribed limits. The Karta can alienate the property only in three cases: legal necessity, the benefit of the estate and for the performance of indispensable duties.
2. Prakash v. Phulavati, (2016) 2 SCC 36
3. Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343
4. Ganduri Koteshwaramma & Anr. & Chakiri Yanadi & Anr., (2011) 9 SCC 788
5. Vineeta Sharma v. Rakesh Sharma & Others, Civil Appeal No 32601 of 2018