By Divyanshu Sharma
---
Citation: 2020 SCC Online SC 641
Act: Hindu Succession Act 1956 (as amended in 2005)
Principle: Daughters are equal coparceners in father's
property
Women have long been neglected in relation to inheritance laws. Several years of equality movements have brought about a change in the area of inheritance laws, wherein equal rights have been given to daughters as that of sons. One such step was the Hindu Succession Amendment Act 2005, which amended section 6 to state that daughters were to be treated as equal coparceners in the ancestral property. This case dealt with this section and analyzed whether the rights provided by this section can be applied retrospectively. This case dealt with two contrasting legal positions – one by Prakash v. Phulavati, which stated that section 6 cannot be applied retrospectively; the other by Danamma and Another v. Amar and Others, which applied the section retrospectively but stated that the father needs to be alive to pass on the right to the daughter.
Coparcenership
and Section 6
Coparcenary
is a right that is based on close blood relations and common ancestral property.
Coparcenary is a narrower version of a Joint Hindu Family, wherein a common
ancestral property is controlled by 3 generations of a family. The Mitakshara
system consists of an undivided family, having common right and interest in an
ancestral property. Before the 2005 Amendment Act, only the male members of the
family were given the right to share the coparcenary property. This right was
based on birth, i.e. a person becomes a
coparcener because it is his birthright. For a long time, this Mitakshara system
was seen as discriminatory, as it discriminated against the female family
members.
The 2005
Amendment changed section 6 substantially wherein the right of coparcenary was
extended to the female members of the joint family. The amendment gave daughters
an equal right in the common ancestral property as that of sons. As per the
Supreme Court, the purpose of the amendment was to give an unobstructed right
to the daughters, which sons already have, from the moment of their birth. However,
a major issue was whether this right required the father to be alive at the
time of introduction of this amendment.
Right
Based On Birth
The
contention of the respondents was that the right would come into existence only
if the father is alive to pass on the coparcenary right to the daughters. It
was appealed that if the father was dead, then the share in the coparcenary
property would be reverted to the common ancestral property, thus leaving no
share for the daughters.
However,
the Supreme Court rejected these contentions. The Court said that the
coparcenary right comes into existence through
of the birth of the child. It does not matter whether the father is alive to
grant this right to the child. The child would get a share in the property from
the moment of its birth. This means that
even if the father is dead, the daughter has the legitimate claim in the
ancestral property. The court relied on the wording of the section and said
that had the legislature intended the father to be alive at the time of the
amendment, for its enforcement, the wording would have been completely
different. Since the court’s job is to analyze the written law and not re-draft
it, the Court found this contention unsustainable.
Share of
Property Inherently Uncertain
Another contention
of the defendants was that if the right is given to daughters retrospectively
it would lead to confusion and uncertainty in property division. However, the
Supreme Court rejected this contention by establishing the inherent uncertainty
in the Mitakshara system.
The
Mitakshara system works on a basis wherein the
share of the all the coparceners in the common ancestral property is undecided.
It keeps fluctuating on the basis of change in circumstances, like birth of a
child or death of a coparcener. The share becomes certain when one of the
coparceners files an appeal for the partition of the property among all the
present members. Once the share of each person is ascertained, the coparcenary
ceases to exist and then no one can claim a new share. So, if the rights given
by section 6 are given to daughters on a retrospective basis, there won’t arise
any new uncertainty. Since the appeal for partition of property is not filed,
the share of all the members is already uncertain. As a result, retrospective
application of the right won’t create any new problems.
Effect of
Partition Decree on Section 6 Rights
A
coparcenary comes to an end when the members decide to divide the property
among themselves, and thereby fix their individual shares. However, the 2005
Amendment provided for written partitions to take place mandatorily and that
too with a high degree of proof of the intention to separate. The respondents
contended that if the right of coparcenary is given to daughters
retrospectively, as envisaged by section 6, then it would bring as disruption
to cases where the coparceners intend to divide the property among themselves.
To rebut
this claim, the Supreme Court analyzed the Explanation added to section 6 by
the 2005 Amendment Act. The explanation clearly provides that the coparcenary
right would not be applicable if the property has already been divided. The
Court further strengthened this explanation and said that the coparceners need
to prove that the partition of property is concluded and is not merely
underway. This means that the coparceners have to establish that the partition
deed has been finalized and approved by the Court. If they are unable to do so,
the daughter would get a share in the property.
The Court
stated that a preliminary decree of
partition just determines the share of each coparcener. This preliminary
decree should be acceptable to all and approved by the court to make the
partition binding. So, the Court clearly stated that if a partition hasn’t
taken place by metes and bounds, the daughters would still get the right in the
ancestral property. The Court also stated that when a preliminary decree is
filed, the final decree has to be made keeping in mind all the circumstances
that might have changed. This means, that if a daughter gets the right by section
6 and a preliminary decree has been filed for partition of property, the court has to account for the
newly-found right of the daughters. If this isn’t done, it would be
violative of the constitutional right to equality of daughters. The Court also
emphasized that in case of an oral partition, the parties need to show strong
proof for establishing that the partition took place before the amendment was
introduced.
Conclusion
The 2005
Amendment Act, which amended section 6 of the Hindu Succession Act 1956 was
major step towards establishing equality among sons and daughters. The equal
right to coparcenary was strengthened by the Supreme Court by applying the
right retrospectively, i.e. the grant of the right does not depend on whether
the father is alive or not. Only the daughter needs to be alive on and after
2005, for the said right to be enforced. The right of coparcenary is based on
birth of the child and not on the death of the parent.
Secondly,
the Court clarified that if a preliminary decree has been filed for partition
of the property, the court needs to consider the coparcenary right of the
daughters while deciding the final decree, if any right exists. The drafting of
the preliminary decree cannot bar the application of the right of daughters.
However, if the final decree has been passed, then there is no remedy for the
daughters.
The Court
completely overruled the judgement of Prakash v. Phulavati and partially
overruled the judgement of Danamma and Another v. Amar and Others – the part
which required the father to be alive to pass on the right.
This
judgement of the Supreme Court took the Indian Society one step ahead in its
quest for equal inheritance rights for daughters.
---
Divyanshu Sharma is a 2nd Year Law student at National Law University, Delhi. An avid researcher, he enjoys reading about several contemporary legal and political issues. He is passionate about the feminist aspect of law and likes to understand law in this direction. His core interests include Constitutional Law and Commercial Law.
No comments:
Post a Comment