Daughter's right in coparcenary property

Shekhar K. Agrawal

An article on Law of succession was circulated earlier on 15th June. The article covered cases of both - where deceased had left behind a valid and enforceable Will and Intestate Succession. In both the cases, succession takes place for the self-acquired properties owned by Testator.

This Update is regarding HUF family property held by coparceners by virtue is their birth and expansion in the right of daughters, equal to that of a son, in the same.

Historically, rules of inheritance were shaped by patriarchal mind set of society with property descending through the male line of generations Daughters were not considered as legal heirs and sons alone used to inherit properties of the father.

This changed with codification of Hindu personal laws, in particular enactment of Hindu Succession Act, 1956 (HSA, 1956). It went long way towards correcting the injustices in Hindu law practices and Daughters were given equal right like son, in succession of self-acquired properties of both the father and mother. There however, remained a disparity as far as ancestral / coparcenary property was concerned. The HSA, 1956 as originally enacted, did not recognise women as coparceners in joint ancestral properties. Un amended Section 6 provided that if a male coparcener had left behind on death, a female relative specified in Class I of the Schedule or male relative claiming through such female relative, the daughter was entitled to limited share in the coparcenary interest of her father, but not share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India.

This situation was changed and disparity was corrected with amendment to Section 6 of the HSA, 1956 in the year 2005. As such, with effect from 9.9.2005 ie the date of enforcement of Amendment Act, the daughters became coparceners by birth, in their own right with the same rights and liabilities in the coparcenary property as if she had been a son. Incidentally, the 174th Law Commission Report had also recommended this reform in Hindu Succession Law. Even before 2005 amendment, Andhra Pradesh, Karnataka, Maharashtra and Tamilnadu had made this change in the law.

Applicability of this amendment was, however, interpreted differently by different Benches of the Hon’ble Supreme Court and conflicting judgements were given. A Division Bench of Hon’ble Apex Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act ie 9.9.2005. However, in Danamma vs Aman (2018), another Supreme Court Bench made observations which were contradictory to Prakash vs Phulvati. Hence, the matter of interpretation was referred to a larger Bench of Hon’ble Supreme Court.

Hon’ble Supreme Court, in recent landmark judgement in the matter of Vineeta Sharma Vs Rakesh Sharma & Ors has answered the reference. The judgement has put the last nail on male primacy in division of ancestral property of Hindu. It has declared that daughters will have inheritance rights equal to those of sons for properties of fathers, grandfathers and great-grandfathers right from codification of law in 1956. The Court cleared the confusion arising out of conflicting decisions and held that substituted section 6 of the HSA, 1956 confers status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The rights can be claimed wef September 9, 2005. It held that it is immaterial whether the father or any other coparcener died before the 2005 amendment or not, because coparcenary of daughters also accrue from birth. Hence, it is not necessary that the father coparcener should be living as on 9.9.2005. The Court dwelled on the objective of the amendment Act, and emphasized on ‘goal of gender justice as constitutionally envisaged’. In this context, the court quoted a popular phrase used in a judgment which says “A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

An argument was raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. Hon’ble court did not accept this argument and held that it is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener. By declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

When the proviso to un-amended section 6 of the Act of 1956 came into operation and the share of the deceased coparcener was required to be ascertained, a deemed partition was assumed in the lifetime of the deceased immediately before his death. Such a concept of notional partition was employed so as to give effect to Explanation to section 6. The fiction of notional partition was meant for an aforesaid specific purpose. It was not to bring about the real partition. Neither did it affect the severance of interest nor demarcated the interest of surviving coparceners or of the other family members, if any, entitled to a share in the event of partition but could not have claimed it. The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended beyond. Matters where any alienation, testamentary disposition (or a disposition of property by a will), or partition had already taken place before December 20, 2004, are to be left untouched, as per the provisions of the Section itself.

The apex court held that a daughter born earlier than September 9, 2005, may claim these rights, with effect from the date of the amendment, and it did not matter if the father was alive on such date. The court gives the provision, what it calls, ‘retroactive’ status. That is, the provision operates in future, however, its operation is based upon the character or status that arose earlier.

Resultantly, Hon’ble court answered the reference as under: (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­ I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect.