The recent decision of a three-judge bench of the Supreme Court in the Vineeta Sharma vs Rakesh Sharma case has generated a lot of debate on property rights of Hindu daughters as coparceners. Hindu coparcenary initially comprised one common male ancestor and three generations of male descendants like son(s), sons’ sons(s), and sons’ sons’ son(s). It excluded the daughters of the same degree from inheriting the property of the said common ancestor.
This Hindu law of succession to deal with a situation where no will was executed, in relation to Hindu coparcenary, was codified as the Hindu Succession Act, 1956 (HSA), which bases its rule of succession on the basic Mitakshara principle of propinquity, ie, preference of heirs on the basis of proximity of relationship.
Before 1956, the property of a Hindu woman was divided into two heads — Stridhan and Woman’s Estate. The Hindu law interpreted Stridhan as the properties received by a woman by way of gift from relations over which she had full rights, its absolute owner. On her death, all types of Stridhan passed to her own heirs and not to the heirs of her husband.
The ‘Woman’s Estate’ was also called widow’s estate. A Hindu woman could be the owner of Woman’s Estate in the same way as any individual, subject to two basic limitations — she could not alienate the property and on her death, it devolved upon the next heir of the last full owner. In other words, she had only ‘limited estate’ ie, she had full powers of possession, management and enjoyment of such property, but she had virtually no power of transfer.
However, an exception to bar on alienation was made in cases like legal necessity, for the benefit of estate and for discharging indispensable religious duties. Thus the position of Hindu woman in relation to property and succession was not satisfactory and uniform. The rights varied depending on the school to which she belonged and the nature of property that devolved upon her.
This uncertainty was put to rest by codifying the entire Hindu law of succession in 1956, and as amended from time to time. Section 14 of the HSA made radical changes in the rights of a Hindu woman to succeed to the property of a deceased husband, father and father-in-law, etc, as its absolute owner with all rights, including alienation.
The HSA has considerably whittled down bias against women in property rights in general, but in coparcenary, she was not recognised a coparcener along with her brother(s), who became coparceners by birth. Hindu daughters got equal rights to inherit the self-acquired property of the parents and their ascendants, on a par with their male counterparts, provided that there was no will written. Succession being a concurrent subject, States like Andhra Pradesh, Tamil Nadu and Maharashtra amended the HSA to recognise even Hindu daughters as coparceners on a par with sons.
NT Rama Rao, then AP Chief Minister, was a pioneer in recognising his Telugu Adapadachulu (daughters) as coparceners, and other States followed suit. Though complete discrimination against Hindu daughters was not removed, these amendments conferred substantial property rights on them. The HSA was amended in 2005 with far-reaching changes, and the central law occupies the field today.
Section 6 in the principal Act has been substituted by the amended provision. This provision declares that a Hindu daughter shall have the same rights in the coparcenary property and also will be subject to the same liability as a son.
The Hindu Succession (Amendment) Act, 2005, was enacted to remove gender discriminatory provisions in the HSA. Hindu daughters became coparceners to claim their share in coparcenary provided such property was not disposed of or alienated or partitioned or willed away before December 20, 2004. Here, the partition should be registered or be by order of court. This restriction was imposed to have certainty and for preventing any unwarranted litigation due to increase in value of land and other properties.
In Prakash vs Phulavati (2016), the apex court held that the text of the 2005 amendment to Section 6 clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’. An amendment to a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. The question concerning the interpretation of Section 6 was referred to a larger bench in view of the conflicting verdicts rendered in two division bench judgments of the Supreme Court in Prakash and Danamma v. Amar (2018).
In Vineeta Sharma vs Rakesh Sharma, the bench clarified that the substituted Section 6 confers equal status of coparcener on all children whether sons or daughters, irrespective of time of birth, with same rights and liabilities, if the property remains undivided, unpartitioned or not transferred even after Dec 2, 2004. It makes no difference whether father coparcener is alive as on Sept 9, 2005, ie, the date of enforcement of substituted new provision.
Hindu daughters can claim a share in coparcenary and also as a Class-I legal heir in the deceased father’s property. Now one cannot validly say that she is not entitled to the double benefit since son also gets similar rights. The court also clarified that Hindu daughters cannot be deprived of their right of equality, even if any suits or appeals are pending before courts by directing their disposal within six months.
This judgment settles many unsettled issues. Time has come to enforce the Hindu daughter’s property rights in letter and spirit. At the same time, one must remember the famous saying that “whisper the words land into the ears of a corpse on its bed, it will sit up” which always raises the possibility of litigation at any age. The need of the hour is not litigation but mitigation without compromising the right to equality.
(GB Reddy is Professor, University College of Law, Osmania University. Baglekar Akash Kumar is student at the University College)
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