Author: Priyanshi Bansal and College Name: Meerut College
To the Point
Hindu law of Succession is primarily a conception of Mitakshara School of Law. The compilation of Mitakshara school of law that deals with many aspects of hindu law thoroughly, discussed the law of inheritance and succession of hindus which resulted in the enactment of Hindu Succession Act, 1956. However, the daughters of the 21st century are still fighting for their basic human rights i.e. the right to have equal status, at instance, which has to exist within the four walls of their house. The daughters were yet to be given the equal status of ‘coparcener’ which only vested in the male descendants of undivided hindu family until the Hon’ble SC, on that account, through the landmark judgement of Vineeta Sharma v Rakesh Sharma & Ors (2020) 9 SCC 1 (SC) delivered the affirming status to hindu daughters as ‘coparcener’ in the hindu undivided family, alike the sons.
The court in the middle of this modernized century proclaimed that the daughters also relish the equal share in the ancestral property since their birth as that of the male descendants irrespective of the living status of their father on the date when the Hindu Succession (Amendment) Act, 2005 came into force. The bench asserted that the Amended Act of 2005 would have the retroactive effect of the aforementioned amendment. This article hereby pens down the review of this landmark assertion and reasonings which is made in favor of the hindu daughters.
Use of Legal Jargon
‘Joint Hindu Family’ is the family headed by the common ancestor, his wife and the children which includes unmarried daughters, and the male lineal descendants. The conceptualised pattern of lineage determines the notion of the term ‘coparcenary’ which envisaged that the male descendants upto the three generations have the birth- right in the ancestral property since the day of their birth.
‘Coparceners’ are the one who thereby can call for partition of the property as per desire and needs. They are the owners of their vested interest in the ancestral property which couldn’t be sold until the lawful partition of share in the Hindu Undivided Family Property. Therefore, the male descendants of the Joint Hindu Family, by their birth, were vested the right in the ancestral property which is called ‘inheritance by birth’.
Section 6 of the Hindu Succession Act, 1956 (Amended) is the legislative norm that describes the rules of devolution of coparcenary property when a Mitakshara coparcener dies intestate. Furthermore, the legislative provision has been amended by the 2005 Amendment Act which envisaged the legislative intent in reference to the equal rights and liabilities of Mitakshara Hindu daughters in Undivided Hindu Family property. The 2005 Amendment upholds the gender equality in the hindu law by granting the birth right to the daughters in the undivided hindu property from the date of commencement i.e. 9/09/2005. However, this law through Section 6 (1) proviso exceptionally legislated the restrictive right for hindu daughters in the properties that have already been partitioned under the law before 20/12/2004.
Therefore, the 2005 Amendment Act enforces the ‘retroactive’ nature of the rights of hindu daughters which means that the hindu daughters are deemed as the coparceners like sons since their birth. The provision will not have the retrospective effect rather it will have ‘in futuro’ effect i.e. future effect based on the past event. This signifies that the daughters will have the coparcenary right since the date of their birth, an antecedent event. Indeed, it will have neither the prospective effect nor the retrospective effect. This amendment thereby ended the rule of survivorship for devolving the interest in HUF property which means that after the amendment the property will not devolve on the surviving members of the deceased coparcener.
This analysis, indeed, has been concluded in the judgement of Vineeta Sharma v Rakesh Shamra (2020). This case as one of the landmark judgments in the hindu law hereby discussed the perplexed situation of the daughters right under section 6 of HSA.
The Proof
Section 6 of Hindu Succession Act, 1956 plays a remarkable role in the hindu family law. This provision underwent the numerous amendments that finally through the Amendment Act, 2005 laid down the principle of gender equality. However, the legislative interpretation about the application of this progressive provision has been discussed in a number of cases.
In the concluding precedent of Vineeta Shamra v Rakesh Sharma, the ambiguous interpretation of Section 6 was decided by the Hon’ble bench of Justice Arun Mishra, Justice M.R. Shah and Justice S. Abdul Nazeer..
The facts of the case introduced about equal claim of share by Ms. Vineeta Shamra over a coparcenary property. The brothers denied the same by arguing that their father had passed away before 9/09/2005 and therefore she is not entitled to coparcenary rights. The following legal issues arose before the bench:
- in respect of the daughters coparcenary rights in the undivided hindu property if the father dies before 9/09/2005
- secondly, about the application of amendment act whether retrospective or prospective in nature.
The division bench in Prakash v Phulavati in their precedent ruled that for the daughter’s coparcenary rights, her father needs to be alive on the date of enforcement. Further, in Danamma v Amar the division bench of Hon’ble Supreme Court granted the coparcenary rights to the daughters irrespective of the fact that the father died before the date of implementation. However, the division bench didn’t clarify about the application of the Amendment Act, 2005. Therefore, these conflicting precedents baffled the legal fraternity, and thereby was referred to the larger bench in Vineeta Sharma’s case.”
The court decided in favour of hindu daughters (Ms. Vineeta Shamra). The court observed the following:
- the daughters have the coparcenary rights in the undivided hindu family property. The daughter has a birthright and the survival of the father is immaterial in nature. The death of the father on or before the date of enforcement will not debar the daughter from her coparcenary right. Moreover, the daughter’s claim cannot be suspended by the notional partition. However, if the family had the lawful partition before 20/12/2004 then daughter’s coparcenary right will not survive. This overruled the judgment of Prakash v Phulavati (2016).
- secondly, the court observed the ‘retroactive’ effect of the provision which means the provision will apply with the future effect but based on the past event i.e. from the date of their birth the daughters will have the future rights.
Thus, this case reinforced the principle of gender equality by guaranteeing the hindu daughters the equal status in the hindu family. The court through this judgment rejected the ‘Doctrine of Notional Partition’ which was taken as a shield by the coparceners. The court opined that Notional Partition is a legal fiction which cannot exclude the daughters to claim their coparcenary rights in the ancestral property. Thereby, this judgment is a progressive step that reinforces the constitutional value of gender parity. Moreover, the decision ensured the uniformity in law of succession.
Abstract
India is one of the countries that is unfortunately circumferenced by the perspective of gender discrimination. It has evolved aeons ago whereby the foundational base of gender biasness started from families. The behavioural nature of families is one of the reasons for the vulnerability of the female section of society. There was a huge disparity between girl child and boy child in respect to the economical security for their well- being. The girls were not vested any rights in the property that has impacted their social existence in the society as well as within the family and thereby they turned to be a vulnerable class of society.
Therefore, the evaluation of Vineeta Sharma v Rakesh Sharma (2020) judgment through the 3 judges bench of Hon’ble SC construed the real notion for the amended Section 6 of Hindu Succession Act, 1956. This amended provision of hindu law aimed to achieve gender equality by ending the orthodox philosophy from the society. The judgment, nonetheless, elucidated the flummoxed interpretation of the aforementioned section and also threw some light on the constitutionality of gender equality. The work determined the judicial interpretation for the nature of enforcement of the amended provision in hindu inheritance law by overruling many precedents that also upheld the principles of Article 14 and 15 of the Constitution of India.
This judgement hereby is a landmark step that enforced the real principle of inheritance rights by granting the hindu daughters equal rights as that of the hindu sons, by birth. This ended the patriarchal nature of the hindu law from the society and strengthened the women economically and socially.
Case Laws
- Shyam Sunder v Ram Kumar (2001)
In this case, the Hon’ble Supreme Court discussed how the amendment affects the pending cases. This discussion played a crucial role in vineeta sharma’s case because the bench determined about the cases where the father passed away before the enforcement of the Act.
- Prakash & Ors. v Phulvati & Ors. (2016) 2 SCC 36
The appeal was filed in the Hon’ble Supreme Court in reference to the application of section 6 (1) of HSA Amendment of 2005 in HSA. The question arose whether the section 6 (amended) has retrospective effect or prospective. The division bench of Hon’ble Supreme Court, therefore, by restricting the rights of living daughters held that the father and daughter both need to be alive on the date of amendment i.e. 9/09/2005. The court gave the plain reading of the provision and applied the harmonious construction to the social legislation that was enforced for the uplifting of women’s rights. This judgment limited its retrospective effect and thus was overruled by vineeta sharma v rakesh sharma case.
- Danamma @ Suman Surpur & Anr. v. Aman & Ors. (2018)
The case is one of the well- appreciated cases because the division bench of Hon’ble Supreme Court penned down the inheritance right of a transgender woman in Hindu Succession Act. In this case the coparcener was not alive on the date of enforcement of section 6 (amended) i.e. 9/09/2025 and Danamma, being an adopted daughter and a transgender woman sought her equal share in the deceased father property as like the biological son of her father. The supreme court held that the daughters have coparcenary right in the hindu ancestral property, which means they have equal status in the father’s ancestral property irrespective of the fact that the father was dead on or before the date of enforcement. This case ended up the traditional perception in the 21st century. However, the ruling failed to clarify the nature of the Act which was clarified in vineeta sharma’s case that the 2005 amendment has retrospective effect.
- Ganduri Koteshwaramma v Chakiri Yanadi (2011)
In pursuance of the precedents, the court appreciated the progressive peculiarities of Hindu Succession (Amendment) Act, 2005 by ruling that the daughters of the deceased father have the right to inherit the ancestral property. However, this also falls short of words in discussing the retrospective or prospective effect of the 2005 Amendment which was indeed clarified in vineeta sharma v rakesh sharma case.
Conclusion
Equal rights and equal status is a key to constitutionalism. It is a fundamental right under Article 14 of the Indian Constitution that there shouldn’t be any form of gender discrimination. Vineeta Shamra v. Rakesh Sharma (2020) observation is in the line of fundamental values of constitution. The judgement embellishes the gender parity in the hindu families thereby constructing a bridge of legislative interpretation and deciding that daughters have the birthright in the hindu undivided family property. It ended the age-old supremacy of patriarchy from the hindu families. This judgement indeed sets out the clarity for the lower courts as well as for the society that inheritance law is bound by law of equality. Therefore, from the date of enforcement (9/09/2005) of Section 6 Amendment Act, 2005, the daughters will also possess the right of inheritance irrespective of father existence on the date of enforcement. This means that it is not necessary for both the father and daughter to be in existence on the date of implementation.
It can be concluded that this judgement is a significant step towards the revolution of gender discrimination. This progressive precedent is thereby based on the principle of justice, equity, fairness and reasonableness
FAQ
- What kind of properties do Section 6 of Hindu Succession Act (Amended), 2005 govern?
Section 6 of Hindu Succession Act (Amended), 2005 states about the right of coparceners in the property which is ancestral in nature and thereby is not applicable on the properties that have been received in partition of HUF property or to the members those have already become the owner of their share. This was also held in the case of Bhanwar Singh v Puran (2008) 3 SCC 87
- What was the legislative intent for the amendment of 2005?
The legislative intent of the Amendment in Hindu Succession Act, 1956 is to vest the uniform rights in hindu male and female. The Act intended to end the age old perception of gender disparity from the foundational pillar of the society i.e. family. The four walls of the house are the source of gender discrimination. Therefore, the legislative intent was in consonance with the constitutional rights to hindu daughters under Article 14 and 15; the equal status in the property rights. This has been held in the case of Ganduri Kotheshwaramma v Chakiri Yadini (2011).
- What is Notional Partition? Can the daughters be a coparcener to the properties that have already been partitioned?
Notional Partition is the hypothetical division of property to ascertain the share of deceased coparcener. However, daughters cannot claim the coparcenary right in the property that has already been partitioned, lawfully. However, if the partition is done illegally or wrongfully excluding daughters then they can challenge such partition.
- Is daughter a coparcener in this 21st century?
The daughters, after the case of vineeta sharma v rakesh sharma, are the coparceners in the hindu undivided family. In the hindu family, both daughters and sons will have the impartial status in the hindu undivided family property, since their birth. Nonetheless in the matter of daughters they are vested with the aforesaid right irrespective of the living status of their father on the date of enforcement of amendment. This has concluded the age- old practice of gender disparities from the hindu succession and inheritance law.
