One of the basic features of the Constitution of India, 1950 (Constitution) is equal treatment of men and women in all spheres of life. Despite equality being enshrined as a fundamental right, personal laws of various religions governing matters of family and succession were shielded from being tested on the scales of equality under the Constitution. The legislative history of succession law throws light in understanding the scheme before the Hindu Succession Act, 1956 (HSA) was enacted.
HSA made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would devolve on other coparceners by survivorship, however, an exception was carved out to the effect that if the deceased was survived by a female relative (such as daughter, widow, mother) the interest of the deceased coparcener in the coparcenary properties would devolve onto such female relatives by testamentary or intestate succession as provided in the HSA. For this purpose, the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death of the coparcener. To that limited extent, although women did not become a coparcener, but they could inherit the property.
Women did not have any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Even though the traditional Hindu Law dealing with matters of succession was codified in by the enactment of the HSA, there was a glaring omission in the statute in as much women continued to be deprived of equal property rights in ancestral property.
It was only in the beginning of the twenty first century India, when the legislature amended section 6 of the HSA with effect from 9 September 2005 thereby removing the discrimination meted out to women by conferring on daughters to equal rights with sons of inheritance in Hindu ancestral property. Despite the amendment in 2005, there was ambiguity surrounding questions such as rights of a daughter if the father was not alive or when he passed away before the amendment was enacted, and if a partition had already taken place before 2005. The said questions were finally answered by the Hon’ble Supreme Court (Supreme Court) in a progressive judgment delivered on 11 August 2020 in Vineeta Sharma v. Rakesh Sharma in Civil Appeal Diary No 32601 of 2018 (Judgment). The Supreme Court had previously delivered conflicting judgments in Prakash and Others v. Phulavati and Others (2016) 2 SCC 36 and Danamma @ Suman Surpur and Another v. Aman and Another (2018) 3 SCC 343. As a result of the conflicting views, the matter was referred to a larger bench which rendered its judgment on 11 August 2020.
The Judgment by a threebench judge of the Supreme Court comprising of Hon’ble Justices Arun Mishra, S. Nazeer and M.R. Shah clarified and significantly widened the rights of a daughter to coparcenary property under the HSA.
Amended section 6 of the HSA is a future and forward – looking provision which has at last been given its true interpretation by the Supreme Court by enlarging the rights of daughter under the Hindu coparcenery.
This Article focuses on the Judgment, meaning and features of Hindu Coparcenary, a brief on the law as it stood before the Judgment passed by the Supreme Court, various schools of Hindu Law, consequences of the Judgment and its take-away.
The meaning and features of Hindu Coparcenary
Coparcenary is a legal institution recognised in Mitakshara Schoolof Hindu Law consisting of the propositus (the first descendant) and three lineal descendants (a total of four generations only). It is pertinent to note that the Hindu coparcenary is a much narrower body than the Hindu joint family. While a Hindu joint family consists of all persons descended from a common ancestor and includes the wives of male members and unmarried daughters, the Hindu coparcenary only comprises of only four generations of the family. The coparceners have traditionally been only male members who acquire an interest in the coparcenary property by birth. Status of a coparcener is a creation of law commencing with birth and ending with death or by severance of such status by way of partition or statutory fiction. The status of coparcenary ceases on death.
Till 2005, a coparcenary included only male members who became coparceners by birth. After the HSA was amended in 2005, the coparcenary included daughters, married or unmarried, as well.
As considered by P. Ramanatha Aiyar, the land is held in coparcenary where there is unity of title, possession and interest. A coparcener shares (equally) with others in inheritance in the estate of a common ancestor. The share of a coparcener is undefined and keeps fluctuating with the birth and death of a coparcener. When a male is born, he becomes a coparcener, thereby decreasing the share of other coparceners. In the event of the death of a coparcener, the rule of survivorship comes into play, and the estate devolves on the surviving coparceners to the exclusion of heirs of the deceased coparcener. It is only on partition when the coparceners become entitled to a definite share. Further, until a partition is effected, every coparcener has ownership extending over the entire property conjointly with the other coparceners. In view thereof, every coparcener can possess and enjoy the entire property which is common to all.
The law as it stood before the Supreme Court Judgement
The Supreme Court vide the recent Judgment has overruled the contrary observations made in earlier judgments titled as Prakash & Ors. v. Phulavati (2016) 2 SCC 36 & Ors. and Danamma @ Suman Surpur & Anr. v. Amar & Ors (2018) 2 SCC 36. The Supreme Court in Phulavati (2016) held that the benefit of 2005 Amendment could be granted only to “living daughters of living coparceners” as on 9 September 2005. In addition, the Supreme Court held the provisions of section 6 of HSA to be prospective. This position was re-iterated by the Supreme Court in Mangammal v. T.B. Raju (2018) 15 SCC 662.
Thereafter, in the case of Danamma (supra) (2018), the Supreme Court contrary to the view taken in 2015 in Prakash v. Phulavati (supra) held that amended provisions of section 6 confer full rights upon the daughter as coparcener thereby ruling that any coparcener including a daughter, can claim partition in the coparcenary property without considering the date on which the legislation came into effect. Accordingly, it was held that the share of the father who died in 2001 will also pass to his daughters as coparceners during the partition of the property as per the 2005 amendment.
The present ruling now settles the law and clarifies the intention of the 2005 legislation to remove the discrimination as contained in section 6 of the HSA by giving equal rights to daughters in the Hindu Mitakshara coparcenary property.
Decoding the Supreme Court’s decision
Briefly, the Supreme Court has held that:
1. The amended section 6 of the HSA makes the daughter a “coparcener in her own right” and “in the same manner as the son”. The right has been conferred by birth and from the commencement of the Amendment Act.
2. The daughter who can claim property share may be born before or after the amendment in 2005.
3. The amendment has retroactive application, i.e., although the amendment does not operate retrospectively but its operation is based upon antecedent events. Therefore, the rights for past events can be claimed only with effect from 9 September 2005.
4. Since the right has been conferred by birth, it is not necessary that the father of the daughter should be living as on date of the amendment.
5. However, the provisions protect the disposition or alienation, partition or testamentary disposition which had taken place before 20 December 2004 which cannot now be reopened.
6. Partition has been defined in the Amendment Act as one bought about by a ‘decree of Court’ or ‘effected by a registered instrument’. A special definition has been brought in to avoid sham defences to unjustly deprive the daughter of her share.
7. Therefore, even if a partition suit has been filed before the Amendment Act or a preliminary decree for partition has been passed before the amendment Act, the rights of the daughter can be taken into consideration till the date of the final decree.
8. A high burden of proof is cast upon a person taking a plea of conclusive oral partition prior to 20 December 2004. Such a plea ought to be supported by contemporaneous documentary evidence such as public documents, appropriation of income, separate occupation, consequent entry in revenue and the like. The intent of section 6 of the HSA is only to accept genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence as the intent of the provision is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted.
Schools of Hindu Law and their relevance
The history documents corroborate that Hindu law is the most ancient and prolific law in the world. Hindu law has been around every phase as it is about 6000 years old. Hindu law is broadly governed by two schools of thought namely Mitakshara and Dayabhaga. The HSA, which was under debate for some time, lays down the uniform system of inheritance inter alia applying to the persons governed both by the Mitakshara and Dayabhaga schools. The HSA clearly recognises the rule of devolution by survivorship among the members of coparcenary. The Mitakshara school recognized two kinds of heritage: (1) Unobstructed heritage: property from father, grandfather, and great-grandfather in which interest is accrued by birth and (2) Obstructed heritage: when interest in property is not accrued by birth but when the last owner died without leaving a male heir. The Mitakshara school seemed to have contributed to discrimination in the coparcenary law on the ground of gender and negated the fundamental right of equality guaranteed by the Constitution.
The Supreme Court vide the recent ruling clarified that section 6 of the HSA contains the concept of unobstructed heritage of Mitakshara coparcenary as the conferral of the right is by virtue of birth and not by the death of the father or any other coparcener. Resultantly, the coparcenary must exist to enable the daughter of a coparcener to enjoy the rights conferred on her.
Therefore, the Supreme Court held that even in circumstances when the father is not alive at the time of the amendment in 2005, the daughter will still be entitled to ancestral property in the exact same manner as upon a son with the same rights and liabilities.
Consequences of the Judgement
The Judgment has dismantled the barriers for daughters and deals with peculiar nuances of the disputes and questions which generally arise at the time of partition of the coparcenary property by metes and bounds.
(1) If the father died before 2005: For easier understanding of the Judgment, we may consider an illustration. Say the father died in the year 1990 i.e., before the 2005 amendment of the HSA, and the sons continued to occupy the property. The daughter also got married prior to 2005 amendment of HSA and stayed in a different property with her husband. Now the first question which arises is whether the daughter can seek partition and seek a share in the father’s property where the sons have been residing since the death of the father. The Judgment of the Supreme Court settles the position of law in these facts. The daughter can seek partition and get an equal share in the property as the said property has not been partitioned yet. The daughter can also either choose to reside in the property or seek monies equivalent to her share in the property.
(2) The effect of notional partition: Pertinently, the unamended section 6 of the HSA recognized that when a coparcener died intestate is survived by any female relative specified in Class I of the Schedule to the HSA or any male relative claiming through such female relative, the interest of the deceased does not devolve on other coparceners but upon such members by intestate succession. To determine the share of such deceased member, a notional partition was assumed immediately before his death which then devolved upon the female relatives or persons claiming through her. The Supreme Court in the recent Judgment reiterated that such a notional partition on account of a statutory fiction does not lead to an end of the coparcenary and is not an actual partition. In view thereof, it has been held that a notional partition would have no effect on the rights of the daughter in view of the 2005 amendment of the HSA. This means that the sons cannot now argue that the property stood partitioned automatically when the deceased died on account of a ‘notional partition’ thereby depriving the daughters of their share. The Judgment states that, it is not necessary that the father should have been alive in 2005, when the amendment came into effect. This right of coparcenary arises by the virtue of birth of the daughter and can be exercised later.
(3) If partition crystallises before 2005: Importantly, if the partition has been crystallised before the 2005 amendment to the HSA came into force, the same cannot be re-worked or re-evaluated. The daughter cannot seek a fresh partition after 2005. (
4) In cases of oral partitions: Another circumstance that may arise is that the male coparceners may contend that there was an ‘oral partition’ prior to the amendment act thereby again depriving daughters of their legitimate share of the property. The Judgment has categorically dealt with such contentions being adopted by individuals and has specifically held that if there is no contemporaneous documentary evidence substantiating the oral partition, the plea of oral partition will not be admissible. The property will have to be partitioned by metes and bounds, in case, the contentious partition has not been crystallised before. In this regard it is relevant to reproduce the findings of the Supreme Court as “However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”
(5) When a partition suit has been instituted/ preliminary decree passed before 2005: Another legal scenario that has been dealt with by the Supreme Court in the present judgment can be summarised by way of an illustration.
For instance, the father died in the year 1996 and was survived by two sons and one daughter. The daughter was married in the year 2000. Subsequently, the daughter filed a suit for partition (before the 2005 Amendment of the HSA) of the aforesaid property seeking limited share in the said property as a Class I heir and not as a coparcener (in view of the then prevalent law). As per the law before 2005, she could only seek one-third of the father’s share of the property which would be one-ninth of the total share of the property while her brothers would each enjoy one-third of the total property in addition to their shares of the father’s share in the property. Even if the court had passed a preliminary decree in the year 2004 declaring the daughter’s share to be one-ninth and final partition had not been effected, till the 2005 amendment came in effect, the daughter is entitled to an equal share as other coparceners and not as Class I heir. Therefore, in a matter of a few hours from one-ninth share, a daughter would legitimately be entitled to hold one-third share in the property equal to that of the two sons. Further, since the suit has not been disposed of as yet, the adjudicating court shall amend the preliminary decree in accordance with the present Judgment of the Supreme Court.
Takeaways from the Judgement
The Judgment is a major push for women who lack and have been denied economic resources. Economic empowerment is central to women’s ability to overcome poverty and improve their well-being. The Judgment can truly be hailed as championing of women’s property rights in India. Empowering women is also a step towards spurring the productivity and economic growth in any nation.
Women today have come a long way in other spheres of life such as education, work, and equality at the workplace. However, even today, families are treated as sacrosanct spaces where the interference of law is abhorred.
The denial of property rights to women stem from deep-rooted patriarchal notions in our society. Daughters have long been conditioned and advised to forego their property rights for the sake of peace in the family. Daughters have also always been told that they do not belong to the family of their birth but instead belong to the family they marry into (refer to the old Hindi adage of “Paraya Dhan”). It is believed that if property is given to the daughter, the property no longer remains within the family. In fact, unfortunately an argument to the effect that ‘a married daughter ceases to be a member of the father’s family and becomes a member of her husband’s family’ was also urged before the Supreme Court in the present case.
The Supreme Court has in its landmark Judgment effectively discarded the old and regressive social mores and provided a ray of hope in effecting much needed social change as regards women’s property rights. The Judgment is also in consonance with the spirit of equality under Article 14 of the Constitution.
Every small step towards women empowerment leads to a better future that the world awaits to admire. Despite the progressive judgment, we may sound a word of caution that families may not be willing to share property with the daughters of the family in reality. Therefore, the need of the hour is to continuously make efforts to change the patriarchal mindset of society. The struggle for an equal space in the realm of family law does not end with the Judgment. It is imperative that individuals take forward the baton to make claims within their own realms in order to ensure that what has been decreed by the Court does not merely remain a dictum of the Court but translates into action. What is also required is to create and spread awareness and educate people to change attitudes and to wholeheartedly accept their daughters’ rights to property.
Vanita Bhargava (Senior Partner), Trishala Trivedi (Principal Associate) Raddhika Khanna (Associate) and Shweta Kabra (Associate) are part of the Dispute Resolution practice of Khaitan & Co, New Delhi.