Unobstructed Hereditary rights to daughters: A step towards undying spirit of Gender Equality

This Article is written by Pauravi Kolhe and Mansi Jain, Third-Year Law students at Gujarat National Law University.

Introduction

The women in India have been struggling with their property rights for a prolonged time. The standing of the Hindu women had always been beneath the male members of the family according to Dharmashastras. The Hindu Succession Act, 1956 is majorly influenced by the Mitakshara Hindu law which is patriarchal and patrilineal. During the enactment of the Hindu Succession Act, 1956, when the Hindu Law Committee recommended abolishing the concept of right by birth, it was outrightly rejected by the legislators who were unable to assimilate the possibility of giving equal rights to daughters. Their patriarchal mind was set on the belief that a daughter will become a part of another family after marriage and ultimately it will be the son who looks after the family lineage.

 The Parliament took nearly five decades to grant daughters a right by birth to their ancestral property. But this lukewarm effort started drifting apart due to a number of anomalies. The Supreme Court in the recent judgment of Vineeta Sharma v Rakesh Sharma cleared the air and ruled that a daughter has an equal right over the ancestral property irrespective of whether her father died before the Hindu Succession (Amendment) Act 2005 came into force or not.

Ambiguity over the applicability of Section 6 of the Hindu Succession Act, 1956

A. Daughter’s right to property before the 2005 amendment

The Hindu Succession Act, 1956 is an act that describes the intestate succession among the Hindus. It deals with both inheritance and succession. Under this Act, only the sons were considered as coparceners. Coparceners have a birthright over the ancestral property and only a coparcener has a right to demand a partition in the property. Before 2005, the sons, grandsons and great-grandsons were considered as coparceners and holders of joint property. Also, only the sons were allowed to become the Kartas of HUFs’ and the daughters were debarred from the same as they were not coparceners. Daughters were given a share in father’s separate property as they were introduced as class I heirs and it enabled them a share through notional partition. When a person had died before the partition took place leaving his female relative or a male heir claiming through such a female relative, the property was divided through testamentary or intestate succession presuming that the partition took place before he died. This statutory fiction of partition protected the interests of the deceased’s daughter.

B. Daughter’s right to the property after the 2005 amendment

Section 6 of the Act, 1965, which deals with coparcener’s right in the HUF property was amended in 2005. This amendment put the daughters in par with the sons. This was the first step to ensure that there is equality between the male and female counterparts of the family.  Presently, the daughters are also considered as coparceners and have an equal birthright over the ancestral property and the rights attached with coparcenary, which includes the right to demand a partition of the property. The amendment allowed the daughters to act kartas as they are a part of the coparcenary.  

However, the amendment opened leaving a trail of questions behind which were not clearly construed and therefore, were interpreted in different ways by the various courts including the Supreme Court.

C. The contrary decisions of the SC’s divisional benches

1.   Prakash v. Phulvati: In 2015, the division-bench, in this case, held that if father had passed away before 9th September 2005 (the date on which the amendment came into effect), the daughter would have no right to share in coparcenary property.

2.   Danamma v. Amar:  In the year 2018, another division-bench held that the daughters have a right to share in the coparcenary property, even if their father had passed away before 9th September 2005.

However, the Supreme Court in its latest the decision held that as per the amended Section 6(1) of the Act, the daughter born before the date on which amendment came into effect can only claim her rights from 9th September 2005.

Neoteric approach of SC in Vineeta Sharma v. Rakesh Sharma (2020)

On 11th August 2020, a three-judge bench of J. Arun Mishra, J. S. Nazeer and J. M.R. Shah, in the case of Vineeta Sharma v. Rakesh Sharma gave a momentous  decision relating to daughter’s coparcenary rights on ancestral property.  In the landmark ruling, the Supreme Court held that the provisions amended in the Hindu Succession Act in 2005 holds a retrospective effect.  

Prior to the 2005 amendment, only the male members had coparcenary rights to the ancestral property. However, the Supreme Court noted that the provisions of section 6 grant daughters the right to be a coparcener born before or after the 2005 amendment in par with the same rights and liabilities as the son. Consequently, it grants daughters the right to ask for the partition of the property or to become the Karta of a HUF. Now, a preliminary decree can be obtained to ensure the coparcenary rights of daughters.

Further, the Supreme Court observed that the statutory fiction of partition created by the proviso of Section 6 of the Act as primarily enacted did not bring off an actual partition. The former law stated the property share had to be computed by imagining that the partition took place immediately before the said person’s death. This was practiced because women were not granted the right to have share in the coparcenary property, whereas were entitled to a share of the interest of the dead coparcener (namely, husband or father of the women), in the property. However, the court has now held that irrespective of this complex mechanism of the statutory fiction of partition, the new provision after the 2005 amendment has to be implemented in the pending proceedings or appeals. In other words, daughters will be granted equal coparcenary rights in the HUF property even if the father had died before the Hindu Succession (Amendment) Act, 2005. 

The Supreme Court also held that an unregistered oral partition cannot be accepted as the legitimate mode of partition, unless the same is proved by leading proper documentary evidence or contemporaneous documentary evidence. The court observed that such oral petitions will arise and dissolve the desirable effect of the legislation depriving a huge section of women of its welfare. However, the court clarified that in exceptional cases, based upon continuous evidence for a long time in the form of public documents, the partition can be considered in congruence with the essence of the sub-section 5 of section 6 and its explanation.

Moreover, the Supreme Court also noted that numerous suits and appeals are pending before the high courts and subordinate courts due to its awaited decision on the conflicting issue. The court requested all these courts to decide all the pending matters, as much as possible within 6 months.

Conclusion

While the term equality was penned in the Constitution, it was never recognized entirely. The patriarchal usages and norms were made laws in the name of customary practices. The passing of coparcenary property to sons in HUF emanates from the very ingrained traditions and customs. The Mitakshara law not only contributed in mounting the discrimination on the grounds of gender but also was equally tyrannical towards the fundamental right to equality guaranteed by the Constitution.

Therefore, granting women the birthright to their ancestral property is a positive step forward in empowering them and making them truly independent which was blemished by inequality. This decision of the Supreme Court serves as an incremental measure to bring a shift in the attitude of the society towards the goal of gender equity. It also puts an end to the stigma that having a son is a must to continue the traditions and inheritance of the family.

However, after every answer to a legal quest, a new question arises immediately. Similarly, debates have started on whether the children of the daughter will have the rights over their maternal grandfather’s property similar to the son’s offspring. This is a harmonious development towards gender equality, but will certainly unlock the Pandora box of unimaginable contentious issues, it being retrospective and retroactive both.