Coparcenary Rights Of A Hindu Daughter
Author: LawSphereX
Category: Family & Personal Law
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COPARCENARY RIGHTS OF A HINDU DAUGHTER
Pracheta Sharma, Ideal Institute of Management and Technology & School of Law (IP University)
ABSTRACT
As per the Hindu Succession Act, 1956, (as amended in 2005) any individual born in a Hindu Undivided Family becomes a coparcener by birth. Both sons and daughters are coparceners in the family and share equal rights and liabilities over the property. The succession of the property in the situation of an intestate will has been a topic leading to quarrels in the families. Taking in view, the position of succession before the 2005 amendment it is clearly highlighted that succession was a gender centric aspect. Daughters were not only denied their share but the society looked upon a daughter’s share in her father property rightly unrecognized. They were only allowed residence and not inheritance. This points out the vivid loop holes in the societal norms. Even after the enactment of the Hindu Succession Act, 1956, the daughters were not considered coparceners unlike the sons of the family.
They were allowed the right if inheritance in only the self-acquired property of the father. However, after the act was amended in 2005 and daughters were recognized as coparceners of the undivided interest but there was more to this. The daughters were only allowed to inherit the property equally as sons only if their father died after the amendment ( 9th September 2005 ). Fortunately, the latest judgement by the Honourable Supreme Court has ruled out that even if the father died before the Hindu Succession (Amendment) Act, 2005, daughters have the same rights as sons in the coparcenary property. It further stated that the amendment's rights apply to living daughters of living coparceners as of September 9, 2005, regardless of the daughters' birth dates.
Due to the lack of availability of their coparcenary rights and the vagueness of their interpretation, women have been subjected to historical injustice and inequality. Keywords: The Hindu Undivided Family, Coparcener, Inheritance, Injustice, Inequality
INTRODUCTION
A will specifies how a person intends to transfer his or her assets or properties to his or her heirs after death. In some situations, a person leaves a Will, which directs the transfer of their assets after their death. In these circumstances, the Will is in charge of succession is known as testamentary succession. In some instances, a person does not leave a will before dying. In such instances, the law of intestate succession governs the succession and is known as Intestate succession. As a result, the legal heirs of the deceased become entitled to the deceased's assets. In India, different succession laws apply to Hindus, Muslims, Christians, Parsis, and others. The statutory law in regard with the Hindu law intestate succession is THE HINDU SUCCESSION ACT, 1956. For knowing the depths of this act, one has to know about the key highlights of the act i. e.
, the distinction between the two types of properties. The ancestral and the self-acquired property. The Ancestral Property refers to the property inherited from one's common ancestors while the Self-Acquired Property is obtained with one's own capital. The Hindu Succession Act of 1956 formalized Hindu law, stating that ancestral property can only be inherited by the male lineal descendants of a common ancestor in a joint Hindu family. The Act was based on the belief that because a woman will eventually marry and become a member of another family, she should not be legally labelled a coparcener. Despite having 'absolute ownership' of their own property, the women were unable to assert coparcenary rights over the family estate.
As a result, the Act was blatantly discriminatory against women on the basis of their gender, and it violated their fundamental right to equality guaranteed by Article
14 of the Indian Constitution.1
THE
BACKGROUND
The question about succession has always been an aspect of great importance in the Indian families. For gaining a better understanding about the current scenario we need to look back in time. Before the enactment of The Hindu Succession Act of 1956, the concept of a will was not considered in Hindu law treaties. Courts, however, recognized the power of a Hindu to 1 Available at: https://blog. ipleaders. in/evolution-daughters-right-property-india-step-towards-equalrights/#:~:text=Coparcener%20is%20a%20term%20used,daughters%20to%20inherit%20coparcenary%20prope rty. (Last accessed on – 9th February 2024) Available at: Intestate Succession under Hindu Law apply when a Hindu person dies intestate without leaving a valid Will. Succession can either be testate or intestate. (legalkart. com) ( Last accessed on – 9th February 2022 ) Available at : https://www. livemint.
com/money/personal-finance/who-is-a-coparcener-11589905200213. html (Last accessed on – 9th February 2024) transfer his distinct and self-acquired holdings over time. Even before the Hindu Succession Act was enacted. There was no such law governing this idea prior to the Act's enactment. However, in 1865, the Succession Act was enacted; however, it did not apply to Hindus. Furthermore, the Wills Act, which went into effect in 1870, only applied to Hindu wills in Madras. The execution of a will by a Hindu was later recognized and controlled by the law on January 1, 1927, following the passage of the Indian Succession Act, 1925. It is consequently that after the first of January, 1927 regarding an unprivileged will that is made by those people who don't make an advantaged will.
Advantaged will was made by the individuals from military occupied with real fighting or utilized in a specific endeavour. Such unprivileged wills were executed by a Hindu, the necessity of authentication of such a will by at least two observers became required. Prior to 1956, Hindus were governed by property laws that were arbitrary and varied from region to region, and in some circumstances, from caste to caste, even within the same territory. The Mitakshara school of succession, which ruled most of north India, held that male heirs had sole authority. The Dayabhaga system, on the other hand, did not recognize inheritance rights by birth, and neither sons nor daughters had rights to the property during their father's lifetime.
2 THE HINDU SUCCESSION ACT, 1956 The Hindu Succession Act of 1956 was passed by the Indian Parliament to alter and codify the law of intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs. According to the act, only the male members of the family were recognized as coparceners of the ancestral property in case of an intestate will of the deceased father while the daughters were denied the coparcenary rights in the ancestral property. However, the daughters could inherit their father’s self-acquired property. The ancestral property was to be devolved by the survivorship rule. The survivorship rule recognized only the males as the coparceners up to three generations. Women were not recognized as coparceners.
3 THE HINDU SUCCESSION ACT, 1956 AS AMENDED IN 2005 Section 6 of the Hindu Succession Act, 1956, which deals with the coparcener's right in Hindu 2 Available at: Applicability of a will before and after the enactment of Hindu Succession Act, 1956 - iPleaders (Last accessed on – 9th February 2024) 3 Available at: https://egazette. nic. in/WriteReadData/1956/E-2173-1956-0038-99150. pdf ( Last accessed on – 9th February 2022) Available at: https://www. thehindu. com/opinion/editorial/right-by-birth-the-hindu-editorialon-daughters-and-hindu-succession-act/article32347299. ece (Last accessed on – 9th February 2024) Undivided Family property, was changed on September 9, 2005, with effect from that date. In terms of coparcenary rights in Hindu Undivided Family property, girls are now on par with sons as a result of this modification.
As a result, the daughter inherits all of the rights that come with coparcenary, including the power to request property partition and become a Karta of the HINDU UNDIVIDED FAMILY. Only the daughters born into the family will be granted coparcenary powers. Other female family members who enter the household through marriage are still treated as guests. As a result, they do not have the right to apply for a partition, but they do have the right to maintenance and shares. This amendment was a great initiative to improve the gender discriminatory provisions. In the coparcenary property (ancestral property of the Hindu Undivided Family), the daughter will now have the same rights as a son by birth.
This modification also repeals Section 23 of the Hindu Succession Act, which prevented a female heir from requesting division of a dwelling house that was entirely occupied by a joint family unless the male heirs agreed to divide their parts. The Act's Section 24, which prevented a widow from inheriting her husband's property if she remarried, has been repealed. This Act has resulted in a central amendment that applies to all state governments. A daughter will no longer be a member of her parents' Hindu Undivided Family after marriage, although she will remain a coparcener. As a result, if she is the eldest coparcener of her father's HINDU UNDIVIDED FAMILY, she has the right to request partition of the Hindu Undivided Family property and to become the Karta of the HINDU UNDIVIDED FAMILY.
Even if a married daughter dies before the partition, her children are entitled to the shares she would have gotten if she had been alive at the time of the split. The grandchildren will be entitled to the shares that the daughter would have received on the partition if none of her children are living on the day of partition. Ironically, the daughter cannot give up her portion of the Hindu Undivided Family property while she is alive, but she is perfectly capable of doing so through a will. If she dies without leaving a will, her portion of the joint property will transfer to her legal heirs rather than the other members of the HINDU UNDIVIDED FAMILY. 4 4 Available at: https://egazette. nic. in/WriteReadData/2005/E_45_2012_114. pdf (Last accessed on – 9th February 2024) Available at: https://evaw-global-database. unwomen.
org/en/countries/asia/india/2005/the-hindusuccession-amendment-act-2005 - :~:text=The Hindu Succession (Amendment) Act,same manner as the son. (Last accessed on – 9th February 2024) RELEVANT CASE LAWS PRAKASH AND ORS V. PHULAVATI AND ORS, 20165 The Supreme Court ruled out that the Amendment Act was prospective in nature. As a result, as of the date of the Amendment Act's passage, daughters will be coparceners, with an equal stake in a joint Hindu family property as males. From this case, the following points should be noted: § In order to claim a part of the joint Hindu family property, the daughter must live in 2005. § If the daughter dies before the amending legislation takes effect, her legal heir will be unable to claim a share of the joint Hindu family property.
§ In order to guarantee an equal position in the coparcenary property, the daughter's father must also be alive at the time of the enactment. § The daughter's claim as a coparcener in the joint Hindu family property after the 2005 Amendment would not affect the alienation, disposal, or transfer of any joint family property or a registered division made before the amendment act. DANAMMA @ SUMAN SURPUR VS AMAR ON 1 FEBRUARY, 20186 The Supreme Court ruled that the Amendment Act of 2005 applies to all living daughters of living coparceners as of the date it took effect. Second, the Supreme Court stated that the daughter, like son, becomes a coparcener by birth. Now, one question arises: Is it true that a married daughter ceases to be a coparcener in her father's Hindu Joint Family following her marriage?
Yes, after her marriage, she becomes a member of her husband's joint family, but she continues to be a coparcener in her father's Hindu Joint Family.
5 Case law (PRAKASH AND ORS V. PHULAVATI AND ORS, 2016) -
https://main.sci.gov.in/jonew/judis/43087.pdf
6 Case Law (DANAMMA @ SUMAN SURPUR VS AMAR ON 1 FEBRUARY, 2018) -
https://main. sci. gov. in/supremecourt/2013/3186/3186_2013_Judgement_01-Feb-2018. pdf As a result of the preceding debate, it is apparent that both a son and a daughter, regardless of gender, have the status of coparcener. 7 VINEETA SHARMA V. RAKESH SHARMA & ORS. , 2018 (THE LANDMARK JUDGEMENT)8 A three-judge bench was convened to resolve the conflicting rulings. The Supreme Court stated in the case of Vineet Sharma v. Rakesh Sharma & Ors. , 2018, that Section 6 of the Hindu Succession Act permits an unhindered inheritance by birth to the daughter. As a result, a coparcener's father does not have to be living on September 9, 2005. The Court further stated that, “Coparcener’s right is by birth.
Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment act 2005, as has not been conferred the rights of a coparcener by obstructed heritage”. As a result, the daughter can only assert her rights as of the date of the change, and any property transaction will be unaffected by the new Section 6(1) of the HSA. The court also explained Section 6(5) of the HSA, which states that partition can only be made by virtue of a registered partition deed or a court decree, and that the court can only take notice of an oral partition in exceptional cases based on long-standing evidence in the form of clear public documents.
The court further ordered that cases that have been severely delayed due to earlier contradictory decisions by the High Court and subordinate courts be resolved within six months concerning the same subject matter for dispute. 9 THE CURRENT SCENARIO According to the meetings, ancient texts such as the Smritis, commentaries provided by different best known learned individuals, and even judicial decisions have acknowledged the rights of several female heirs, the wives and daughters is perhaps the most prominent of them. Daughters of a male Hindu who dies intestate will be permitted to inherit the self-acquired and other properties obtained in separation by the father, according to the judgement given by a 7 Available at: https://lawtimesjournal. in/danamma-suman-surpur-anr-vs-amar-ors/ (Last accessed on – 9th February 2024)
8 Case Law (VINEETA SHARMA V. RAKESH SHARMA & ORS., 2018) -
https://main. sci. gov. in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020. pdf 9 Available at: https://blog. ipleaders. in/case-analysis-vineeta-sharma-v-rakesh-sharma-others-along-7-matters/ ( Last accessed on – 9th February 2024) bench of Justices S Abdul Nazeer and Krishna Murari on 20th January,2022. Daughters will also be given preferential treatment over other family members who are not related to them. According to the court, if a male Hindu dies intestate (without a will), his property devolves by inheritance rather than survivorship whether it is a self-acquired property, or if it was gained in the division of a coparcenary or a familial property. Such property would be inherited by the daughter.
The privilege of a widow or daughter to acquire self-acquired property or a share obtained in the division of a coparcenary property of a Hindu male deceased intestate is extensively acknowledged under old customary Hindu law and several court decisions. 10 THE GENDER CENTRIC VIEW One of several substantial advantages brought in for women has been the creation of coparcenary (right by birth) status for women in Mitakshara joint family property. Previously, the female successor had only a nominal fraction of the deceased man's estate. Both men and women will have equal rights as a result of this change. The centuries-old traditional Hindu law of the exclusive male mitakshara coparcener has been abolished across the country, dealing a severe blow to patriarchal society.
For millennia, the privileged right of sons in joint family property has been regarded sacrosanct and unalterable, with the offering of "shraddha" for the religious benefit and comfort of ancestors. It has also made a crucial impact in Indian society's overt inclination for sons. This change has made the daughter a part of the coparcenary in one easy step, and it is a massive step toward gender equality. The important move of declaring all daughters (including married ones) coparceners in joint family property has had an enormous economic and symbolic impact on women. It can increase women's economic security by providing them birth rights to assets that males cannot will away. This is a significant victory in a male-dominated society where wills frequently disinherit women. Women can also become kartas of the property, as previously stated.
All of this signifies those sons and daughter are considered equal members of the parental household. It disproves the concept that a daughter belongs only to her husband's family after marriage. If her marriage falls apart, she can now go to her natal home on her own terms, rather than at the 10 Available at: https://indianexpress. com/article/explained/explained-how-supreme-court-has-interpretedinheritance-of-daughters-7735804/ (Last accessed on – 9th February 2024) behest of family. In both parental and marital homes, this will boost her self-esteem and societal worth, as well as provide her more negotiating power for herself and her children. Daughters will now receive a percentage equal to that of sons at the time of the hypothetical split, soon before the father's death, as well as an equal share of the father's separated share, according to the modification.
Undivided rights in coparcenary property are distributed equally. However, the mother's standing in relation to the coparcenary remains unchanged. She will not receive a share at the time of the hypothetical partition because she is not a member of the coparcenary. Only from the distinct portion of the father estimated at the time of the speculative separation will the mother be eligible to an equal share with other Class I heirs. In fact, the mother's actual part will decrease because the father's distinct share will be reduced because the estate will now be divided evenly between father, sons, and daughters in the theoretical division. 11
CONCLUSION
Many breakthroughs have occurred in the domain of coparcenary rights, allowing women to play their legitimate role. Various legal acts relating to coparcenary rights have been made, but the Hindu Succession (Amendment) Act of 2005 was the most significant modification in terms of inheritance and succession. To some extent, this statute addressed a key concern about gender disparity. The amendment gave recognition to the coparcenary rights that are inherited by a daughter since birth. The act, as amended drew a distinction between the unequal parameters of the society. The orthodox and conservative societal norms were challenged and repealed for the betterment of society. Social evils like gender disparity hide behind the curtains of culture and norms by society.
These social evils are handcuffs and shackles that are worn by society, restricting them to move ahead and become a nation where no social prejudices exist. For a developing country to become developed, such evils have to be ripped out from the roots of the society, only then equality will bloom. 11 Available at: https://taxguru. in/corporate-law/interpretation-section-6-hindu-succession-act-1956. html (Last accessed on – 9th February 2024)