Coparcenary Property in Hindu Law:
The Hindu Undivided Family (HUF) consists of only the male members and their descendants, which also include their wives and unmarried daughters. Coparcenary is defined as a smaller fragment of the family consisting of the ‘Karta’, the topmost member in the line of decedents who is followed by his three lineal descendants. The term coparcenary property means co-ownership that is marked by the unity of possession, title, and interest. In the Mitakshara school of law, followed in major parts of India, the male’s right to be a part of a lineal dependent of coparcenary is accorded by birth. This does not include female members as coparceners.
The traditional coparcenary law and the codified changes:
According to the Mitakshara law, upon the death of any of the coparceners, the property would go to any of the lineal male dependents based on the ‘doctrine of survivorship’. After this law was codified, a provision was added in Section 6 of the Hindu Succession Act for keeping in mind the interest and protection of female children. The proviso mentioned that if a male member upon his death left behind a Class I female heir or a male relative who could claim property through the female kin, then the property would be succeeded by them through testimony,not survivorship. This codified law was discriminatory towards women, and, after the Hindu Succession Act, 1956, all these laws were repealed.
Significance of the 2005 amendment on the coparcenary law:
The Union Government highlighted this issue as to how the Hindu Succession Act, 1956 can be discriminatory on the basis of gender. The rule of devolution and the concept of excluding women from the Mitakshara coparcenary property law disables them from inheriting ancestral property and goes against the constitutional provisions and misconduct of fundamental rights. The exclusion of daughters from the right to inheritance of ancestral property has been seen as discriminatory on the grounds of sex. It also abuses and negates women’s fundamental right to equality,guaranteed by the Constitution. This is clearly against Article 14 and 15 of the Constitution.
Section 6 of the Hindu Succession Act, 1956 removed discriminatory terms that were unjust to daughters. Another amendment was enacted on 9th September 2005 that made daughters an equal shareholder as sons in the coparcenary property upon the death of her father This amendment too came with a proviso that it would not invalidate any disposition of property by a partition or for those which had taken place before December 20, 2004. This is also the date in which the amendment was suggested in the Rajya Sabha. Since civil cases look at cases in a prospective manner, the law was to apply to daughters upon the death of the coparceners after 9th September 2005 or it would apply to daughters born after that day. Thus, the law wasn’t retrospective in nature.
Several courts interpreted this law differently. The majority of them were of the view that the daughter would receive the coparcenary property only if the father was at least alive till the day of the amendment. If it had to give coparcenary property to daughters whose father died before the amendment, the law would have a retrospective effect. The Supreme Court in the case of ‘Prakash and Others vs Phulavati’ held that the law will not have a retrospective effect and the coparcenary property would only be succeeded by living daughters of living coparceners. Many were against this view as this law yet did not bring forward justice or the concept of equality across genders. There was another case in 2018 ‘Danamma vs Amar’ where it was held that the daughter would get the coparcenary property even though the father had passed away in 2001. These conflicting views needed to be resolved and one uniform meaning of the 2005 judgment was needed to make easier decisions. A three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments in November 2018. Hence, it was decided that a three-judge bench would deliberate and resolve this issue.
The Recent verdict on Coparcenary Property:
“Daughters are to have equal rights to inheritance of coparcenary property like sons and they shall not be deprived of their right to equality. The judgment of 2005 on coparcenary property for daughters will have a retrospective effect”. This was held by the Supreme Court in the recent case of ‘Vineeta Sharma v Rakesh Sharma’, led by a bench of three judges to resolve conflicting opinions on the 2005 amendment. The central issue of the case ‘Vineeta Sharma v Rakesh Sharma’ was that daughters would get coparcenary rights even if the father was not alive on the date of the 2005 amendment. The bench consisting of Justices Arun Mishra, S Nazeer and M R Shah said that the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956, confer the status of coparceners on the daughter born before or after the amendment in the same manner as a son with the same rights and liabilities.
This verdict made it clear that the judgment will have a retrospective effect and the pending cases on this issue must be resolved within six months as per the hearing of this judgment. The right can be claimed by daughters who were born before the 2005 amendment as per Section 6 (1) of the Hindu Succession Act, 1956. As per the disposition, alienation, partition, or testamentary disposition that took place on December 20, 2004, it was made clear that the right in coparcenary is by birth and the requisite condition of the death of the father after the 2005 amendment is not compulsory.
It was also noticed that the court passed a verdict for impermissibility of oral partition. Before the 2005 amendment, oral partition was permissible and the burden of proof lied on the person who claimed for partition. Section 6(5) of the Hindu Succession Act, 1956, post amendment, specifies that the division can only take place by a court hearing or a registered deed. Oral partition, at times, can be set up by fraud tactics which can deprive daughters of their rights. Hence, it was clearly stated that oral partitions would not be acceptable under Section 6 (5) of the Hindu Succession Act, 1956.
In some cases, oral evidence is accepted if it is supported by public documents as per the requirements of the Bench. The bench also claimed that the statutory fiction of partition that was created by Section 6 of the Hindu Succession Act, 1956 did not bring about the actual partition or disruption of the coparcenary. In cases where this kind of partition has taken place before the amendment, the new provision must be acted upon based on the amendment.
Difference between retrospective and retroactive:
The judgment in 2005 was an open ended judgement and hence it was interpreted differently by Judges. The amendment is said to be retroactive in nature because its operation and application is based upon the status or character that has been acquired from antecedent events. It’s retroactive as it would allow daughters to practice their right as copartners since the commencement of the amended Act. Even though coparcenary was said to be a birthright, the amendment had a conflicting view which is why it was said to have a retroactive aspect.
After the 2005 amendment, there was an impact on how women were perceived in society. The 2005 amendment had a positive effect on women’s education and labor force participation. A study found that the 2005 amendment has led to greater access for women to ownership of physical and capital assets. It has also enhanced the probability of the daughters inheriting land. The fact that the act was completely framed in a patriarchal nature cannot be overlooked. The amendment reduces the share of property inherited/owned by male members. Hence, the property law and the amendment needs to be met by some rigid means and methods. This judgment has given a lot of importance to women and their place in the society. During the pandemic, there has been an increase in poverty and unemployment. This judgment has played a huge role for daughters who especially belonged to propertied classes. It is still not easy for women to file cases and ask for their rights in courts. Several societal norms and prevalence of victim-blaming continue to stop women from practising their deserved rights.
Our patriarchal society and orthodox family system treat daughters and female members as unequal members of the family who do not deserve any property rights. In many backward states such as Haryana and Rajasthan, some women are seen to be coerced to sign a document that they are not interested in the ancestral property. Even though they can go to the Court, and fight for their rights but due to their lack of awareness, it fails. The amended act and the judgement makes it clearer as to what stance the daughters hold in the ancestral property and gives them an equal stand in the society. From being a completely patriarchal society there now seems to be a gradual shift which is a commendable growth for the nation as a whole. This judgement serves as a sign of equality and progress and clarified the difference of opinions between different benches of the Supreme Court. A number of different and vague opinions were being conceived by smaller bench of judges which were quite opposing views and hence it needed a larger bench in the Supreme Court to review it.
Sanchali Bhowmik is a second year Law Student (L.L.B. Hons.) at Jindal Global Law School.