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By: Jerine Alex (3rd year) and Rutuja Dhanraj Bukey (1st year)
From time immemorial, deeply held societal, legal and institutional biases, limited women’s ability to inherit assets and property. Increasing women’s ownership has innumerable benefits, not only does it increase their self-confidence and self-security, but it also means more bargaining power and public participation. The article will additionally focus on women’s property rights past several decades of struggle.
1. Hindu succession Act, 1956: prior to the 2005 Amendment
The HSA 1956, deals with succession and inheritance, applicable to Hindus, Jains, Buddhists and Sikhs. The Act mainly dealt with two types of property namely ancestral and self-acquired property. When it came to inheritance of ancestral property, the concept of coparceners was introduced. Coparceners are male members, descended from a common male ancestor, up to three degrees. This implies that sons, grandsons and great-grandsons can be coparceners in the Hindu Undivided Family (HUF) and have an interest in property by birth whereas daughters, wives and widows could not be coparceners making this legislation discriminatory and violative of Article 14 of the Constitution. The survivorship rule faced a lot of criticism and proved to make the situation of women worse.[i]
2. Impact of the 2005 Amendment Act
The amendment was enforceable from 9th September 2005 and it completely ruled out the concept of survivorship. The amendment also repealed Section 23 of the Hindu Succession Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs chose to divide their respective shares. Section 24 of the Act which denied rights of a widow to inherit her husband’s property upon her re-marriage was repealed too. Widows, sons and daughters had an equal share in property now. Daughters could be coparceners from birth. Like sons, daughters had an equal liability on property.
Though this amendment had its positives, there was a huge dilemma about whether the amendment will now be prospective or retrospective in nature. That means is it important that the father needs to be alive on 9th September, 2005 for his daughter to claim his property. For example, say a father who died back in 2002, and the amendment came in 2005, can his daughter still claim her right to the deceased father’s property? There were numerous conflicting judgements regarding the same. There were several judgments which tried to answer this question but failed, it was finally answered in the Vineetha Sharma vs Rakesh Sharma case.[ii]
Before moving on to the Vineeth Sharma vs Rakesh Sharma, it is crucial to understand 3 major judgements which helps to give a clear backstory of the Vineeta Sharma case:
Prakash v. Phulavati[iii] -The single bench of the Supreme Court had held that “the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.” In other words, if the coparcener (father) had passed away prior to September 9, 2005 (date on which the amendment came into effect), the living daughter of the coparcener would have no right to coparcenary property.
Danamma v. Amar Singh[iv] -The three-judge bench of the Supreme Court held that even if the father had passed away before 2005, his daughter would still be entitled to an equal share in the property.
Mangammal v. TB Raju[v] -In this case the bench of Justices R. K. Agrawal and A.M. Sapre, reiterated what was held in Prakash v Phulavati case and the Apex court held that both the coparcener as well as his daughter should be alive to reap the benefits of the 2005 amendment.[vi]
3. Vineeta Sharma v. Rakesh Sharma[vii]
This judgement finally cleared the confusion which was ongoing for decades. The facts of the case being the plaintiff Vineeta Sharma claimed for one fourth of her share in the suit premises since her father and brother died intestate. Her father died in 1999, that is before the 2005 Amendment, hence it was argued by her brothers that she will not be entitled to a share in property. Court held that she is entitled to one fourth share in the property.[viii]
The 3-judge bench of J. Arun Mishra, J. Abdul Nazeer and J. MR Shah, has held that daughters have right in coparcenary by birth and that it is not necessary that the father coparcener should be living when the Hindu Succession (Amendment) Act, 2005 came into force. The daughter shall remain a coparcener (one who shares equally with others in inheritance of an undivided joint family property) throughout life, irrespective of whether her father is alive or not.”[ix]
Some of the crucial highlights of the judgement:
1. The provisions of section 6 have been held to be retrospective and not prospective. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
2. Section 6 is not an amendment but a substitution.
3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
4. It is not necessary that the daughter is alive, if she is not alive the property she was supposed to acquire can be passed on to her legal heirs.
5. Pending cases regarding the matter to be decided in 3 months
6. Legally correct division or transferred right to property before 20th December, 2004 cannot be disputed.
The above-mentioned cases of Prakash v. Phulavati, Danamma v Amar Singh and the Mangammal case were partly overruled.[x]
4. CONCLUSION:
This judgement will play a crucial role in clearing up the confusion and is a progressive step in the upliftment of the women in our Country. The fundamental right to equality under the Indian Constitution has been upheld now in the truest sense and translated into ground reality when it comes to property.
On the downside this judgement only applies to HUF property, and does not affect personal or self-acquired assets held individually. In reality, most personal wealth, including ownership in valuable family businesses, are either held in personal names of the patriarch, or in private trusts or LLPs. There are few families which set up HUF businesses and most of the HUF’s are dissolved, hence the applicability of this judgement might be limited in the future. [xi]
[i] Poornima Advani, A giant step to address gender injustice, 15 Aug 2020, 01:43 PM, https://www.livemint.com/opinion/online-views/a-giant-step-to-address-gender-injustice-11597478771696.html
[ii] Prachi Bharadwaj, Daughters have coparcenary rights by birth even if father died before the Hindu Succession (Amendment) Act 2005 came into force, Published on August 11, 2020, https://www.scconline.com/blog/post/2020/08/11/daughters-have-coparcenary-rights-even-if-parents-died-before-the-hindu-succession-amendment-act-2005-ca
[iii] Prakash v. Phulavati, AIR 2015 SC 1284. [iv] Danamma v. Amar Singh, AIR 2018 SC 0064. [v] Mangammal v. TB Raju, AIR 2018 SC 0440. [vi] Section 6 of the Hindu Succession Act, 2005. [vii] Vineeta Sharma v. Rakesh Sharma, AIR 2020 SC 641. [viii] Id. [ix] Supra, 2. [x] Amit Jain, Vineeta Sharma v. Rakesh Sharma: Clearing the last hurdle towards gender equality in Hindu property law, published on August 24th, 2020, 4:47 PM, https://www.barandbench.com/columns/vineeta-sharma-v-rakesh-sharma-gender-equality-hindu-property-law. [xi] Id.
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