Her Slice of the Pie
The coparcenary right of daughters in India
On 11th August 2020, the Supreme Court of India delivered judgement in the case of Vineeta Sharma v. Rakesh Sharma. The verdict reaffirmed the birth right of daughters to a share in their ancestral property.
Why is this important?
Historically, most societies have followed a patriarchal structure, with property passing from father to son. This tradition is the foundation of property legislations and regulations prevalent across the world that favour the ownership of property by men. Even if women are not explicitly excluded by such laws, economic conditions and social conventions make it difficult for women to keep property in their name. Due to such factors, the likelihood of a man holding title over property far exceeds that of a woman.
Ownership of property is a potent weapon against gender inequality. It gives women economic security and freedom, helping them stand up against social injustice such as domestic violence. The legal authority to take one’s own decisions brings with it a sense of confidence and self-respect. Asserting their will without subordinating it to their father’s, husband’s or son’s wishes is empowering and liberating.
A woman can hence benefit greatly from being statutorily recognised as a coparcener.
Who is a coparcener?
The coparcenary is a unit of an extended Hindu Undivided Family, known in common parlance as a joint family. It consists of one coparcener and his descendants up to three generations. For example, a familial cluster consisting of a man, his sons, grandsons and great-grandsons would qualify as a coparcenary, and each member therein would be called a coparcener. All such persons would have a right to inherit ancestral property, known as coparcenary property.
What is the applicable law?
The devolution of property under Hindu law is governed by the Hindu Succession Act, 1956. Section 6 of this Act pertains to the way coparcenary property passes from coparceners to their heirs. The original section identified only male descendants as coparceners, meaning that daughters were denied a share in the family property.
This section was laudably amended by the Hindu Succession (Amendment) Act, 2005 to formally include daughters as coparceners. On and from 9th September 2005, the date of formal commencement of this Amendment Act, daughters became coparceners by birth and received the same right to inheritance as sons.
Why is Section 6 in the spotlight 15 years later?
Section 6, as amended, states that “the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son”. This gives rise to the question: Is a woman the “daughter of a coparcener” if the coparcener in question is not in existence? In other words, does a coparcener need to be alive as on date of enforcement of the Amendment Act for coparcenary rights to accrue to the daughter?
One must remember that a right in the family property is of a derivative nature: a son can claim his share in it only through the share that his father receives. Hence, it is worth pondering whether the coparcenary right can exist in the absence of the person that is the source of such right.
The Supreme Court has recently delivered a verdict on this question, thereby clearing the confusion around it that had been created by conflicting previous judgements of equal value.
What did these previous judgements say?
In 2016, a two-judge bench of the Supreme Court held in the case of Prakash v. Phulavati that rights under the 2005 Amendment Act would accrue to daughters of coparceners who were living as on 9th September 2005. The death of the coparcener in question should have taken place only after the Amendment for the coparcenary right to be applicable. The court reasoned that the bare text of the Amendment clearly provided that the right conferred on a daughter of a coparcener is “on and from the commencement of” the Amendment Act.
In this case, the Supreme Court also deliberated upon whether the Amendment Act would be retrospectively applicable. It answered in the negative, holding that, “An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.”
The respondents had further argued that the 2005 Amendment, being a social legislation, should have implied retrospective effect in the interest of social justice. However, the court held that, “Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute.”
This is in sharp contrast with the 2018 judgement of the Supreme Court in Danamma v. Amar.
The two-judge bench in this case said that Section 6 of the Hindu Succession Act, post amendment, stipulates that on and from the commencement of the Amendment Act, the daughter of a coparcener should upon birth become a coparcener in her own right. The court emphasised that the amended Section 6 uses the words “in the same manner as the son”. It was therefore clear that both the sons and the daughters of a coparcener receive coparcenary rights by birth.
In sum, the two judges in the former case interpreted Section 6 as giving a woman inheritance rights conditional upon the life of her father coparcener, whereas the two judges in the latter case found no obstruction to the coparcenary right granted to daughters by the Amendment Act.
Thus, at this point there existed two conflicting judgements of the same strength: both were delivered by division benches of the Supreme Court. The matter was hence referred to a three-judge bench to bring in clarity.
What’s the final position?
The three-judge bench of the Supreme Court in Vineeta Sharma v. Rakesh Sharma reiterated that the amended Section 6 conferred equivalent coparcenary right as a son on the daughter, regardless of whether she was born before or after the Amendment. Notably, it held that since this right in the coparcenary accrued by birth, there was no requirement for the father coparcener to have been alive as of 9th September 2005.
Takeaway
In effect, the 2005 Amendment Act did not in itself confer a right; it gave statutory recognition to a right that accrued by birth. A woman hence derived her inheritance rights from the event of her birth into a coparcenary, and not from the circumstance of her father being a living coparcener as on the date of enforcement of the Amendment Act.
Thus, the Supreme Court firmly secured every daughter’s birth right to be a coparcener. By reinforcing the grasp of women upon their fair share of the family property, it delivered social justice while tending to legal justice.
