Authour: Akrity Parashar, IMS Law College, Noida
Editor: Meghansh Reddy, Jindal Global Law School
Earlier a son can only acquire the property of the family and not the daughter. There has always been a mind-frame among the people that the property of the grandfather will be inherited by his son and that his property would be showered upon the grandson and in this way, it follows the same old custom. Daughters are entitled only to their limited share, if any, in the coparcener’s property. Since the antiquity, women have taken a significant place in society and the will power of women cannot be challenged. Then why is the distinction been made between a son and a daughter when it comes to the ancestor’s property? Even the constitution of India grants equality in all respect irrespective of the gender of a person. To avoid and to bring women at par with men it led to an amendment in the Hindu Succession Act of 1956 in the year 2005. The Hindu succession act relates to intestate succession among Hindus. In modern times, the Hindu succession act has acquired great significance more particularly in the business world. However, it is quintessential to note that the Hindu succession act applies only in cases where Hindu male or female dies without making a will and leaves behind various classes of heirs and property.
Who is coparcener?
According to the Hindu Succession Act, 1956, any person who born in a Hindu Undivided Family (HUF) becomes a coparcener by birth.Both sons and daughters are coparceners and share equal rights and liabilities over the property.Prior to the amendments made by the Hindu Succession (Amendment) Act,2005, only male members of a family had a right to the Ancestral property by birth and they were only entitled to demand partition in the HUF Property and thus only male members were called coparceners. Under the Hindu law, it has also been said that the male members up to three lineal descendants are coparceners meaning a family consisting of father, his son, grandson and great-grandson are coparceners in the Hindu property. The genesis of coparcenary thus is a common male ancestor with his lineal descendants in the male line within three degrees excluding him e.g. his son, grandson and great-grandson. This genesis is so long as the male ancestor is alive and after his death, the three degrees can consist of collaterals such as brothers, uncles, nephews and cousins etc. This position is subject to the amendments made by Hindu succession (amendment) Act, 2005 whereby even daughters have been included within the term coparceners and all references to son shall equally apply to daughters also.
However, with the amendments made by the Hindu Succession (Amendment) Act, 2005 daughter has also been given equal rights as a son and she has also become a coparcener in the Hindu property and she has also got rights over the Hindu property to demand partition.
Types of succession:-
1.Testamentray succession:-Section 30 in The Hindu succession act any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.
2.Intestate succession:-According to Section 3(1)(g), a person who dies without leaving behind a will is referred to as intestate.
Position before 2005:-
Indian Constitution grants equality to all persons irrespective of religion, race, caste, sex or place of birth. The Constitution provides for gender equality as part of Fundamental Rights which are enforceable by law. The State grants not only grants equality to women but also empowers the state to take positive discrimination in favour of women. However, even after more than sixty-four years of enforcement of Constitution gender equality has not been achieved in its true sense. Discrimination against women can be seen not just socially but also in the laws made by the legislature itself. There are two famous schools of Hindu Law namely the Mitakshara and the Dayabhag governing the inheritance practices among the Hindus. So prior to 2005, under the Mitakshara law, the male descendants acquire the right in property.whereas the female born in the same Joint Hindu Family was not granted rights of inheritance, their right of ownership was restricted to the stridhan. Every coparcener has a right to ask for partition and inherit the property of the Joint Hindu Family. Though, inheritance by a succession of the separate property would be granted to both male and female members of the family.
Section 6 of the Hindu Succession Act 1956 states that: “When a Hindu male dies after the commencement of this law, having at the time of his death an interest in a shared property of Mitakshara, his interest in the property is transferred by survivorship to the surviving members of the coparcenary and not in accordance with this Law. ”Since a woman could not be a coparcener, she was not entitled to part of the ancestral property by birth.
Until the Hindu Succession Act, 1956, was amended in 2005, the property rights of sons and daughters were different. While sons had complete right over their father's property, daughters enjoyed this right only until they got married. After marriage, a daughter was supposed to become part of her husband's family.
Position after the 2005 amendment:-
The purpose of this law is to extend the rights of a daughter, married and unmarried, giving them the same coparcenary rights as a son in the common property of the family. He wants the line of female lineage to be equal to the level of male lineage. Section 6 of the Hindu Succession Act 1956 was amended as follows.
Section 6 of the Hindu Succession Act 1956 has been amended as stated below.
“In a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall;-
1.by birth become a coparcener in her own right in the same manner as the son;
2.have the same rights in the coparcenary property as she would have had if she had been a son;
3.be subject to the same liabilities in respect of the coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener”.
The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son & the law applies to ancestral property and to intestate succession in the personal property where succession happens as per law and not through a will.
Additionally, the law abolishes the principle of existence in the case of male partners who die as members of the Mitakshara undivided conspiracy. This change fundamentally altered the nature of Mitakshara coparcenary. The purpose of the amendment in article 6 is to eliminate discrimination against the girl because her rights and responsibilities are the same as those of the son. It also means that a daughter is now able to take an interest in joint property, needs to be divided and disposed of it through a testamentary disposition. The new changes allow girls to have a joint family on their own. In short, all the privileges and exclusivity for a son in the family are available to a daughter.
A girl's marital status is irrelevant because the law does not impose any reference or limitation on her marital status. The amendment merely states that a daughter of a coparcener lists herself as a coparcener.
The 2005 law granting women equal rights, questions were raised in many cases about the retrospective application of the law and whether women's rights depending on the living conditions of the fathers who had inherited them. Different benches of the Supreme Court took different views on this subject. Different superior courts had also adopted various ideas of the superior court as enforceable precedents.
In Prakash, the Apex Court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005. The underlying rationale in Prakash was based on the supposed effect of the ‘notional partition’ contained in the proviso to Section 6 of the 1956 Act, ie, in the event of the predecessor coparcener’s demise prior to the 2005 Amendment, there would be a severance of coparcenary property and consequently, there would be no coparcenary property available for partition for a daughter claiming under the 2005 Amendment. While pronouncing the judgment, Justice Mishra remarked: “Once a daughter, always a daughter, son is a son only till he is married.”
On the other hand, in Danamma, the Apex Court had held that Section 6 would apply retrospectively. In this case, the father had died in 2001, leaving behind two daughters, two sons and a widow. The Court had held that “it is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by birth”, and consequently observed that the two daughters being coparceners, were entitled to an equal share in the coparcenary property even though the father was not alive when the substituted Section 6 came into force in 2005.
On August 11, 2020, a three-judge tribunal of the Hon'ble Supreme Court rendered a notable decision in Vinita Sharma v. Rakesh Sharma and Ors 1, which upholds equal rights. Girls for coparcenary property. More importantly, the Hon'ble Supreme Court clarified that a daughter shall be entitled to whether a coparcener father is alive or not before the Hindu Succession (Amendment) Act 2005 ("Amendment of 2005"). Share of a coparcenary property in the same way as a child by virtue of: (i) its birth; And (ii) her life on the effective date of the 2005 amendment.
One of the primary objective of this Act as stated in the Parliamentary Standing Committee Report was to “remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have” a daughter is a coparcener in the same way and with same rights and liabilities as a son, whether she is born before or after the amendment. Therefore by giving full effect to provisions of the substituted Section 6, the daughters must be given a share in coparcenary, equal to that of a son in pending proceedings for final decree or in an appeal, notwithstanding that a preliminary decree has been given.
1) Vinita Sharma v. Rakesh Sharma and Ors [Civil Appeal No. 32601 of 2018]