COPARCENARY RIGHTS OF A DAUGHTER WITH A RECENT AMENDMENT- OVERVIEW OF THE TOPIC
Author: Comingstar Kharsyntiew, IV year of B.A.,LL.B.(Hons.), North Eastern Hill University, Shillong
There was a time when societies were governed by norms based on religions and social customs. The inequalities that was inherent in these norms attained permanence when such religion-based social norms became the source of our codified personal laws. Gender-based inequality in Ancient Hindu Laws concerning the inheritance & devolution of Joint Hindu Property was based on the puranic reasoning that son performs last rites of the father, carries the lineage and is responsible for sharing the debts of the father, therefore holds a superior right of inheritance than the daughter.
In its recent judgment, Supreme Court of India in the case of Vineeta Sharma vs. Rakesh Sharma & others cleared the ambiguity concerning the Coparcenary rights of daughters. To better understand the decision of Apex Court, it is imperative to first understand the concept of a coparcener and how despite Hindu Succession (Amendment) Act 2005, daughters could not get the coparcenary benefits to the fullest.
As per unamended Section 6 of Hindu Succession Act 1956 ‘when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in the Mitakshara Coparcenary Property, his rights in the property shall devolve by survivorship upon surviving members and not in accordance with this Act’ However as per the proviso of the same section ‘if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.’ There was apparent gender bias in un-amended Section 6 of Hindu Succession Act 1956, as Daughter was not a Coparcener and interest could be devolved only by survivorship and female could get only in case of exigency.
Amendment of section 6
Section 6 of the Amendment iterated that the devolution of coparcenary property is either by survivorship or by succession, but it added, the property of a coparcener can only devolve by survivorship if there are only male heirs. In this instance, the customs will apply. The devolution is by succession when the coparcener has both male and female children, then, the devolution will be per the law. This is only applicable when the devolution to the female is in the same class prescribed by law. Such devolution must be equal among all heirs of the deceased.
“A daughter always remains a loving daughter, a son is a son until he gets a wife but a daughter is a daughter throughout her life” by Justice ‘Arun Mishra’
Key feature of the amendment
1. Both sons and daughters have equal rights. As such, they are both coparceners by birth irrespective of gender.
2. The daughter of a coparcener has the same rights bestowed on the son of a coparcener.
3. Just as rights are equal, so also, the liabilities. The Mitakshara coparcenary’s liabilities as applying to the son are also applicable to the daughter.
4. The females such as daughters, granddaughters, great-granddaughters are also entitled to bequeath their equal shares as coparceners just like the male coparceners.
5. The Actis applicable to a Hindu who dies whether testamentary or intestate is the commencement of the Amendment Act especially when his property interest pertains to a joint Hindu family property under the Mitakshara law.
6. The classification of the female heir to inherits as follows:
Ø The Daughter(s) (female heir of a coparcener),
Ø The Daughter’s-Daughter’s son (the third degree of a coparcener, that is, the predeceased daughter’s son), The Daughter’s Son’s Daughter(the predeceased daughter of the predeceased son’s daughter),
Ø The Daughter’s-Daughter’s Daughter(the third degree of the female heir to the predeceased),
Ø The Son’s Daughter’s Son (the predeceased great-granddaughter which is only applicable if the male heir or the grand is predeceased).
7. The Amended Act removes the responsibility of debt repayment by sons, son’s son, and son’s- son’s son for their fathers, grandfathers, and great-grandfathers. Therefore upon the death of the latter, debt repayment does not transfer to the descendants but ends with the debtor. This is not only applicable to male heirs but also female heirs.
The Supreme Court in the case of S.R. Batra & Anr. vs. Smt. TarunaBatra held that in a shared household, the wife is only entitled to claim a right to the residence. This means that the property of the husband or joint family to which the husband is a member. The rights of a woman are only limited to the right of residence.
Whereas in Danamma @ Suman Surpur & Anr. v. Amar & ors. The Court held that the Amendment Act of 2005 which provides coparcenary rights to daughters is applicable since the amendment Act came into force. The court also held that daughters enjoy coparcenary rights as sons.
Prakash &Ors. v. Phulavati & Ors., it was held that daughters living at the time the amendment came into force have the right to claim coparcenary rights irrespective of when they are born. It was held that the amendment clearly states that the coparcenary rights are available for living daughters.
Recently on 11th August 2020, the Supreme Court gave a Landmark Judgement in Vineeta Sharma v Rakesh Sharma and Ors and overruled the decisions made in the above cases. It was held that the requirement of the amended Section 6 is birth, therefore it is not necessary that both coparcener and daughter must be living as held in the cases earlier. An imperative condition is that the coparcenary must have existed as on 9 September 2005.
Appeal (civil) 5837 of 2006
CIVIL APPEAL NOS. 188-189 OF 2018
(2016) 2 SCC 36
Civil Appeal No 32601 of 2018