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Hindu Succession Law and Daughters' Rights (18 August 2020)

Hindu Succession Law and Daughters' Rights (18 August 2020)

Why in News:

In an important judgement, the Supreme Court on Tuesday held that daughters would have equal rights to inherit ancestral property as sons in a Hindu Undivided Family, saying the amendment in law in 2005 would have retrospective effect.

Context:

Supreme Court said the daughters would have coparcenary rights in joint Hindu family property even if the father died before the Hindu Succession (Amendment) Act 2005. A bench of Justices Arun Mishra, S Abdul Nazeer and M R Shah said the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 conferred the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.

Background:

  • These reforms were brought because the Law commission in its 174th reports discuss about the discrimination against the daughter so far, as the inheritance of property is concerned and based on the recommendation made by the law commission of India in its 174th report.
  • In addition the state of Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra had already made certain amendments in this law by seeking assent of the President under the constitution and modified law was applicable in these states.
  • So, the constitution bench, what was implicit in the law by amendment in 2005 has been made explicit by the court in its judgement.

Summary of the Debate

Rights of Coparcener:

  • The coparcener continues for three degrees that is the son, grandson and the great grandson and it is the undivided interest in the property which coparcener has. The moment partition take place then it becomes individual property after the partition. But before that it is a joint interest in the property and if it is a joint interest in the property then only after the division it get crystallise before that it does not crystallises.
  • Under succession, it is not only section 6 which is relevant but section 8 is also relevant because it talks about the; how the interest of the person who has died his share will be divided. Earlier the daughter gets her right only under section 8 and not under section 6, but now the kind of clarification which S.C has given now daughter will also be equal partner in the property.

Hindu Succession Act, 1956

  • It was enacted to amend and codify the law relating to intestate or unwilled succession.
  • It applied to everyone who is not a Muslim, Christian, Parsi or Jew by religion.
  • Buddhists, Sikhs, Jains and followers of Arya Samaj, Brahmo Samaj, are also considered Hindus for this law.
  • The Act lays down a uniform and comprehensive system of inheritance and succession into one Act.
  • The Hindu woman's limited estate is abolished by the Act. Any property possessed by a Hindu female is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes.

Hindu Succession (Amendment) Act, 2005

  • The 1956 Act was amended in September 2005 and women were recognised as coparceners for property partitions arising from 2005.
  • Section 6 of the Act was amended to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”.
  • It 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 personal property, where succession happens as per law and not through a will.

Retroactive not Retrospective:

  • The court has dealt with the issue very clearly and they have not said that it is retrospective effect but they have said it has got a retroactive effect; the retrospective effect means that the judgement in all cases will apply from back date, prospective means, it will apply only prospective  and will not apply to the decision already taken, but retroactive means if there is an exception carved out in it and that exception was if suppose before 09/09/2005 when the amendment was carried out if already by a deed of partition the property has already been divided by a registered deal, in that case that partiton will not be affected.
  • The recent judgement of S.C has given the  date of December 2004, all those partition taken place till December 2004 will not be affected and those registered partition deeds which satisfy all the requirements of law, those will not be attached in any manner whatsoever  by either the amendment of 2005 or by the recent judgement . So unless an oral partition is being pleaded by any of the parties which will have to a strict requirement of law and the strict evidence will be required to prove that an oral partition has taken place.

What if a married daughter died:

In the event of the daughter died then her husband also gets a right of coparcener on behalf of the wife or even if she get incapacitated as a consequence of being a unsound mind, then her next friend or next kin will be in position to invoke those rights.

Mitakshara Law School

  • The term Mitakshara is derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti.
  • This law is observed in all parts of India and subdivided into the Benares, the Mithila, the Maharashtra and the Dravida schools.
  • A son, by birth acquires an interest in the ancestral property of the joint family.
  • All the members enjoy coparcenary rights during the father’s lifetime.
  • A coparcener’s share is not defined and cannot be disposed of.
  • A wife cannot demand partition but has the right to a share in any partition between her husband and her sons.

Dayabhaga Law School

  • The term Dayabhaga is derived from a similarly named text written by Jimutavahana.
  • It is observed in Bengal and Assam.
  • Under this school a son has no automatic ownership right by birth but acquires it on death of his father.
  • Sons do not have coparcenary rights when the father is alive.
  • The share of each coparcener is defined and can be disposed of.
  • Here, the same right does not exist for the women because the sons cannot demand partition as the father is the absolute owner.

Way Forward:

  • As a consequence of this judgement, the daughter should not go tp the court and ask for partition but it should be in more positive manner.
  • The family should get together that what is the legitimate dues a daughter has in the family property and give her share in graceful manner.
  • If that does not happened then instead of running to the court and filing suits for partition, women should approach mediation centre apply for pre litigation mediation and problem can be solved in constructive manner.
  • Even if that does not happened ultimately, it is the daughter to decide whether she wants to give up something out of her own volition or giving up her right to property because of some peer pressure.

                    

Important points made by the Guests

Rekha Agarwal, Advocate, Supreme Court

  • The recent judgement in case of Vineeta Sharma v. Rakesh Sharma 2020, S.C clarified that amendment made to the Hindu Succession Act, which took place in 2005 would have a retrospective effect regarding the rights of daughters in the ancestral property of their fathers.
  • Prior to 2005 amendments in the Hindu Succession Act, section 6; the daughters were not given the status of coparcener in the Hindu Undivided Family and the sons who are born after three degrees that is the son, father and grandfather, in that way the distribution of the property took place.
  • However, in 2005, an amendment was made to the Hindu Succession Act, 1956, particularly section 6 and it was clarified that daughters born after 09/09/2005 would get the same share of the property of their fathers, grandfathers and great grandfathers, which was identical or in parity with their brothers.
  • The problem arose subsequent to the passing of the judgement in the case of “Prakash vs. Phulavati” as well as another judgment in case of “Danamma v Amar” , it was not very clear as to whether daughters who were given this right after 2005; would she get this right even if her father was not alive on the date that she was born or rather after this amendment was passed.
  • So, because of this conflicting judgement that was passed, the Delhi High Court also followed the judgement passed in the case of Prakash vs. Phulavati and therefore the need of this matter  referred to a larger bench of S.C and three judges decided this matter and they have put at rest the entire controversy, though in 2005 the benefits of inheritance had been conferred to the daughters but despite the passing of this judgement as a judge mentioned, not many daughters were able to enjoy the benefits of the amendment of 2005 because it was not very clear whether a daughter had to be born prior to 09/09/2005, whether her father had to be alive on the date that she was born or on the date when amendment was passed on 09/09/2005.
  • Therefore, S.C has clarified that, the amendment of 2005 will have retrospective effect that; a daughter could have been born on any date at all and the date she is born she gets a right which would rather a birth right to claim partition of the ancestral property as a matter of right.
  • So, any daughter born in a Hindu Undivided Family which is falling the ‘Mitakshara law’, she gets the right which is equal to that of a brother irrespective of the date she born.   

J. Sai Deepak, Advocate, Supreme Court

  • Two things happened as subsequent to this particular judgement; one is that the intention of the legislature through the amendment of 2005, which is to say that since a position is recognised by birth of itself as a coparcener and that particular position was captured to a clear effect in some degree of amended section 6.
  • The court is effectively saying, if the intention of the legislature is to ensure the right is devolved upon birth itself and the status of coparcenary depends effectively on the birth of certain coparcener, then what is the point in limiting the scope of that particular right depending on the birth and living status of the parents whose right is actually devolving.
  • So, if a boy or male heir become coparcener upon birth, the intention the amendment o f 2005 was to vets the same status on a girl and that particular status is not affected in any manner on whether a father is alive at the time of the amendment of September 2005, so that was the limited question that court had to answer.
  • The second question that the court has significantly answer is whether it is possible for an oral deed of partition to be given effects to and the court has come to very clear conclusion that as far as oral deed of partition is concerned, it cannot be recognised except in exceptional circumstances when the plea of oral partition is clearly supported by any other public document and can be given effects to and can be corroborated, in the absence of which it needs to be satisfy the statutory requirement of a clear deed, which clearly recognises the rights of partition.
  • The current judgement is largely in sync with the previous two judgement delivered in 2018 by justice A. K. Shikri and Justice Ashok Bhusan.
  • This right is available regardless of the marital status of the women.

P. K. Malhotra, Former Secretary, Ministry of Law and Justice

  • The Hindu Succession Act of 1956, for the first time codified the law with regard to succession which was already there under the Vedic laws and under the Shastra, which was prevalent and the concept of coparcenary or Hindu Undivided Family or joint Hindu family was in existence even prior to that also.
  • There were two school of hindu law, the “Mitakshara school of law”, which was prevalent in northern part of the country and another is “Dayabhaga School Law”, which was prevalent in Assam and Bengal.
  • The Hindu Succession Act of 1956 codified the Mitakshara school of law and under the Mitakshara law, the coparceners are only the male members of the family and the female members of the family are not coparceners and they don’t have right.   
  • There is difference between Joint Hindu Family and the coparcenary. The Joint Hindu Family is a larger term and coparcenary is a narrower term. The Joint Hindu Family have male member, mother, wife and unmarried daughter;  whereas in coparcenary, it is a micro unit of the Joint Hindu Family and it consist of male members of three generations that is the son, grandson and the great grandson. So, three categories are there who inherit the property and it does not go beyond that.
  • The law under the Mitakshara school of Hindu law was codified under the Hindu Succession Act of 1956 and because there was a difference so far as inheritance is concerned. The inheritance under the coparcenary law was only available to male members and there was discrimination so far as the women are concerned. This law was amended in 2005 and the daughters were also given the equal rights under this law which was amended in 2005.
  • By amendment made in 2005, the daughters were recognised as coparcener a joint legal heir for partition arising from 2005 onwards, section 6 also made daughters coparcener by birth in their own right and the law also gave daughter same rights and liability in coparcenary property as she would have had; had she been a son.

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