Daughter’s Coparcenary Rights in India [2020]

Author: Paramveer singh 
Content Writer 

Keyword: Daughter’s Coparcenary Rights in India, coparcenary rights to daughters, supreme court order on daughters right on father’s property, married daughters right in father’s self-earned property, Prakash and others v. Phulavati

INTRODUCTION

When the Hindu succession act, 1956 was enacted, the need for giving Daughter’s Coparcenary Rights in India by the father was not felt by the legislators. The reason behind this was that they believed at the time after her marriage she will become part of another family and should not have any right in getting the property of her father’s Hindu undivided family.

It is rightly said that daughters are considered to be the heart of the family. Once a daughter is always a daughter. Hence, it is important to give both sons and daughters equal rights in the property of the father.

So, why not they should get equal rights as sons in the property of the father? To end up this gender-discriminatory provision regarding property rights, on 9th September 2005, the amendment in the Hindu Succession Act was made. This stood as the great initiative taken by the Apex court.

Amendment was made under Section 6 Of the Hindu Succession Act,2005 that if the daughters and the father is alive on the date amended then the daughters will have the coparcenary right. But this judgement of the apex court has been set aside by a three-judge bench decision which was headed by Justice AK Sikri. Supreme court here held that daughters will have inheritance rights which are as same as those of sons from the properties of Father, grandfather, and great grandfather.

Who is Coparcener?

In a layman’s language, coparcener in relation to a HUF family means a person who is entitled to demand partition of his share in the coparcenary property. Essentially, a coparcener is one who shares equally in the inheritance of undivided property.

We can also say that Coparcener is the one who is legally entitled to the ancestral property since birth. In other words, It means having legal right over the title, possession and interest since birth. The coparcenary property means that property which is inherited by the Hindu from his father, grandfather and great grandfather. Before the amendment of 2005, the coparcener includes were as follows only- sons, grandsons, and great-grandsons. They were the holders of the joint family.

The journey from Old to New law regarding Inheritance rights

Hindus were governed by shastras before the Hindu succession act, 1956, and also customary laws too which varied from region to region. The schools which were followed by them were mitakshara and Dayabhaga school. These deals with matters of succession and inheritance. 

After this, the Hindu law of inheritance act, 1929 was passed which talks about the matters dealing with inheritance . This act  that gives right of inheritance to women up to three female heirs i.e. son’s daughter, daughter’s daughter, and sister.

Furthermore, the act of Hindu succession, 1956 is considered as the act of parliament which was enacted to amend and codify the law of succession and inheritance with the main aim to ensure and establish equality inheritance and succession rights between sons and daughters. This act extends to all Hindus including -Buddhists, Jains, and Sikhs. This act has specified mainly two properties i.e. Ancestral property and self-acquired property.

Rights of a daughter in the property before the 2005 amendment

Section 6 of the act (before the 2005 amendment) states that when a Hindu male dies after the commencement of this particular act and if having any interest in mitakshara coparcenary property then his interest will devolve by the survivorship and not as per this Act.

As per this act, only males were considered as coparceners of the HUF. Females were never considered lineal descendants of the coparceners. Males were termed as coparceners up to three generations. The ancestral property was divided by the rule of survivorship but still, women were not recognized as coparceners. Moreover, Female members were also not entitled to become Karta of the Hindu undivided family and manage their affairs.

Rights of daughters in the property after 2005 The centre passed the amendment act of 2005 after 50 years to end up the gender discrimination in coparcenary property. This was a great initiative which ensures equality among sons and daughters. Women have always been the neglected sector of our economy. This even extended to not giving rights in the property of her father.

But this difference ends up making the bridge by amending section 6. This section was amended in 2005 which canceled the rule of survivorship and introduced the concept of testamentary and intestate succession. This allows and gives equitable rights to daughters to become a coparcener in the same manner as that of sons. Daughters will also be entitled to demand partition of HUF. She will be having all the rights to dispose of her share at her own will. No interference shall be there. They will be considered as coparceners since birth.

Also, daughters will have equal liabilities as sons. However, only the daughters who are born in HUF will get the coparcenary right. Section 24 of this act which denies the rights of a widow to inherit her husband’s property upon her re-marriage was repealed.

Rights of Married daughter after marriage as per Hindu Succession Act

After marriage, the daughter will continue to be a coparcener but not consider a member of our parental Hindu undivided family. She is entitled to ask for partition as well as he can become a Karta of HUF only in case she happens to be the eldest coparcener of her father’s HUF.

After the death of the married daughter, her child shall be entitled to get her share. Very importantly, the daughter does not have a right to gift her share in the HUF property while she is alive but by the way of a will, she is capable of giving away her share. After the death of the married daughter, Her share will automatically pass over to her legal heirs.

Applicability of Section-6 led to some confusions

  • In the case of Prakash and others v. Phulavati[1] under this case, a two-judge bench held that the coparcenary rights are available to the living daughters of the living coparcener and if the father dies before the amended date i.e. 09.09. 2005, then the rights of the daughter would cease to have a property in that case. This means the father had to be alive on the date of enforcement of the 2005 amendment and the daughters can claim benefits under the 2005 act. In short, the father and daughter both must be living on the date of the amended law. But on the other hand, if the father was not alive on the amended date or before the amended date then the daughter would have not right in the coparcenary property
  • Then the case of Danamma v. Amar[2]came which is another two-judge bench. It was  held that the it is immaterial that whether father has died before 2005 or not, the daughter will get the equal share and is entitled to all the coparcenary rights. 
  • These two above cases ends up the whole interpretation of section 6 of the Hindu succession amendment act 2005 into confusion because there arises  a conflict  regarding the Coparcenary rights of daughters in father’s property
  • But In the recent case of Vineeta Sharma v. Rakesh Sharma[3]-A three-judge bench which was headed by Justice Arun Mishra . It was held that the right of daughters in the coparcenary property is by birth and daughters are entitled to equal property rights even if they were not born at the time of 2005 amendment to the Hindu succession act, 1956, and even if the father died prior to the coming into force of the amendment act, 2005. A daughter would have the same status as a son as soon as she is born.  
  • In the lines of Justice Mishra: Daughter remains a loving daughter throughout life and they shall remain a coparcener throughout life, it is immaterial that whether the father is alive or not. They have equal access to the coparcenary property.
  • The honourable SC held that the 2005 amendment would have retrospective effect. This is in case of conferring rights on daughters, who were alive at the amendment and also even if they were born prior to it.

Conclusion

It is hence concluded that the apex court as end up the contradiction regarding the rights of the daughters in coparcenary property that if their father was alive or not on or before the amended date they will have all the rights to access and get inheritance right in the coparcenary property like that of sons.

Though a married daughter will cease to become a member of the family she will remain the coparcener. This contradiction was set aside by a three-judge bench and amended section 6 of the Hindu succession act, 2005 which clearly depends on the principle of equity and gives equitable rights to both sons and daughters. This judgement also led to give retrospective effect which in short means that it is hence immaterial whether the father is alive or not on or before sept, 9,2005( amended date), the daughters will be considered as equal holders of rights in father’s property.


References

[1] (2016) 2 SCC 36 

[2] (2018) 3 SCC 343

[3]https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf

If you have any query regarding this post, feel free to ASK US

You cannot copy content of this page