Author: Arshdeep Bedi
College: Punjabi University, Patiala
The Hindu Succession act, 1956 has undergone a lot of change by virtue of the Hindu Succession (Amendment) Act 2005 . The section 6 of act has been totally changed by new provision. The amendment was based on 17th Report of Law Commission of India on 'Property Rights of Women: Proposed Reforms under Hindu Law'. This commission recommended for removal of ambiguities with relation to Property rights of Hindu women under Act of 1956. The amendment gave coparcenary right to daughters as sons. Since discrimination solely based on gender was completely unjust. Recently in judgement (dated 11th August,2020) by Hon'ble Supreme Court of India gave retrospective effect. And giving full fledged property rights to daughter. As beautifully quoted by honourable court as “A daughter always remain a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life.”
Meaning of Coparcenary:
Coparcenary, is combination of two words Co+Parcenary i.e. together and heirship. Coparcenary is created by law as legal right in parental property by birth & not by the act of parties (except by adoption) .
Hindu Succession Act 1956
The Hindu Succession Act codify laws relating to intestate succession among hindus. It focused on giving equality , tried to uplift position of women by providing Inheritance share in father's property. But limited to share of separate property owned by father through notional partition. Daughters had no right in ancestral property .
The Amendment: The Hindu Succession (Amendment) Act 2005
It gave Coparcenary Rights to daughters same as sons. The act was increased rights of women and daughters and bringing them at par with male members .By way of amendment daughters , got coparcenary rights and liabilities equal to sons .Moreover the amendment brought forth the rule of Succession over the rule of Survivorship.
Section 6 of act was substituted as joint Hindu family, Daughter of a coparcener shall,
a)By birth, become a coparcener same as son.
b)Have same rights in property as she had been a son,
c)Be subject to same liabilities as son, Except disposition or alienation which had taken place before the 20th day of December, 2004.
Points of Consideration:
1.If the father passed prior to 9.9.2005 (amd. Date) then daughter doesn’t becomes coparcener. As in K.M.Thangavel v K.T.Udaya Kumar case AIR 2014 .
2.The provision available to all living daughters those born before or after Amendment. As held in Badrinarayan Shankar Bhandari v.Omprakash Shankar Bhandari (AIR2014 Bom.151)
Landmark Judgement of Prakash & ors.v. Phulavati &ors. (AIR2015 RCr (civil)952.
The Supreme Court held that daughters will have right on and from the commencement of the amendment.The amendment is prospective in nature , which means that right only to living daughters of living coparcener fathers .On and from commencement of amendment that is 9.9.2005.
The court summed that:
1. An amendment is prospective unless expressly or by necessary intendmented.
2. Rights are applicable to living daughters of living coparcener as on 9.9.2005 irrespective ,when daughter born.
3. Disposition or alienation including partitions taken place before 20th December,2004 will remain unaffected.
THE VERDICT of 2020: VINEETA SHARMA vs. RAKESH SHARMA.
The Hon’ble Supreme Court (Bench of Justices Arun Mishra, S Nazeer , M R Shah.) on August 11,2020 stated:
Daughters will have equal Coparcenary Rights in joint hindu family properties and section would have retrospective effect which was earlier prospective effect.
The decision of 2015 Prakash & ors.v. Phulavati &ors. Was overruled . Court held that right of coparcener is by birth and living father coparcener as on 9.9.2005 is not essential.
Court further summed 121 pages long judgement as:
1. The amended section would have retrospective effect.
2. Disposition or alienation including partitions before 20th December,2004 as per law will remain unaffected.
3. Coparcenary Rights is by birth and living father is not necessary.
4. Unregistered oral partition, cannot be accepted as the statutory recognised mode of partition ( except in exceptional cases) .
5. Daughters not be deprived of their right of equality , thus the pending matters be decided, as far as possible, within six months.