What is the Supreme Court Latest Judgment on Property Rights of Daughter
Date : 17 Aug, 2020
Post By Preeti Tanwar
The exclusive prerogative of males to be coparceners had been changed by the Hindu Succession (Amendment) Act 2005. By this Act, Hindu daughters were also conferred with the coparcenary rights in the property on par with sons. As the coparcenary rights are rights from birth, a daughter had also been conferred with the birthright to the Joint Family Property. Before the amendment, a daughter was not entitled to get a share in her father's property. This discrimination against the daughters was brought to an end by the 2005 Amendment Act. Latest judgment on daughters right to Joint Family Property A radical change has been brought by the judgment delivered by the Supreme Court on Tuesday (11.8.2020). Now a daughter of a Joint Hindu Family can claim coparcenary rights irrespective of whether she was born before or after the passing of the Hindu Succession (Amendment) Act, the date of enforcement of which was 09.09.2005. The judgment has ironed the confusion created by case laws subsequent to the Amendment Act. Now it has been held that it is also not necessary that the father must be alive on 09.09.2005 as the coparcenary rights are rights by birth. As an effect of the judgment, a daughter of the Mitakshara Hindu Joint Family will be made coparceners with the same rights as those of sons to the shares to the property. She also has the right to claim partition and to become Karta of a Joint Hindu Family while sharing the liabilities, without any preconditions. The daughters are made coparceners irrespective of their marital status. It means even after the marriage she will continue to be a coparcener. Accordingly, she will be a member of two Joint Hindu Family, and so will her children be. This judgment is a major step towards the abolition of the patrilineal system of inheritance prevailing among Hindus and is important for gender equality. This move will surely enhance women’s confidence and their social worth and give them greater bargaining power for themselves and their children in both (paternal and marital) families. Legal provision under The Hindu Succession Act, 1956 Section 6 as an amendment by 2005 Amendment Act is as provided- Devolution of interest in coparcenary property : On and from the commencement of the Hindu Succession (Amendment) Act, 2005 in a Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall- By birth become a coparcener in her own right in the same manner as the son; Have the same rights in the coparcenary property as she would have had she been a son; Be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004 Position After 2005 Amendment Subsequent to the 2005 amendment certain Supreme Court judgments stated that for the law legislated in 2005 to be applicable, it is necessary that the father of the daughter must have been alive on 09.09.2005. Consequently, this law would not apply to those daughters whose fathers had died before 09.09.2005. Thus for the application of the law to the daughters, it became highly necessary that both father and daughter must be alive on 09.09.2005. Many daughters who approached court were denied the benefit because of this law and later this interpretation became the law of the land in 2016 when the Supreme Court decided in the cases of Prakash v Phulavati (2016) 2 SCC 36 and Danamma @ Suman Surpur v Amar (2018) 3 SCC 343 that for daughters to claim coparcenary rights their fathers must be alive. The observations made in Parkash v Phulavati were reiterated in Mangammal v. T.B. Raju (2018). The latest decision by Supreme Court in Vineeta Sharma v Rakesh Sharma In a significant judgment by a three-judge bench consisting of Justice Arun Mishra, Justice M R Shah and Justice Abdul Nazeer, it is held that a daughter will inherit the Joint Family Property as a coparcener even if her father was not alive on September 9, 2005, when the Amendment Act came into force. The three-judge bench of the apex court on Tuesday said, “Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on September 9, 2005.” It further made the law applicable to even daughters born prior to the commencement of the Act. The judgment came on a patch of appeals raising important legal questions whether the right bestowed upon by the Amendment Act has a retrospective effect or not. Petitions challenging those earlier judgments which had been referred to a three-judge bench for clarity on the law were decided by the court on 11.08.2020. The bench led by Justice Mishra clarified that daughters would get the status of coparceners on par with sons and there would be no exceptions to the rule and hence an equal share in family property would be granted. To ensure that this decision does not lead to reopening of earlier family settlements or partition suits already decided on, the three-judge bench held that a registered settlement or partition suit decreed prior to December 20, 2004 (the date when the Amendment Bill was tabled in Rajya Sabha), will not be reopened. The judgment is a reassertion of the constitutional value of equality to women in personal law without any preconditions. The judgment factors all aspects. It becomes imperative to mention that daughters as coparceners include married daughters. As Coparcenary right is an undefined liability and any liability of father including family debt will be extended to daughters as well. So , it remains to be seen if the husband of the married daughter will be open to bear this burden. The observations made in a nutshell are (Vineeta Sharma v Rakesh Sharma ) (2018) decided on 11 August 2020: The Hindu Succession(Amendment) Act 2005 confers equal rights to the daughters on par with sons to the Joint Family Property The rights can be claimed by the daughter born earlier than 09.09.2005 with a saving provided in section 6 (1) as to any disposition or alienation including any partition or testamentary disposition which had taken place before the 20th day of December 2004 (the day on which the act was tabled in the Rajya Sabha) As the right is coparcenary which is by birth, it is not necessary that the father must be alive as on 09.09.2005 The fiction created by proviso to section 6 as enacted originally did not bring any partition or disruption in the coparcenary. The fiction was only to ascertain the share of a deceased coparcener when he was survived by a female class 1 heir as specified in the schedule to Hindu Succession Act 1956. The full effect will be given to the provision of Section 6. Notwithstanding any preliminary decree, the daughters are to be given an equal share in the coparcenary as sons in a pending proceeding or any appeal In view of Section 6 (5), a plea of oral partition cannot be accepted as a recognised mode as a deed of the partition must be duly registered under the Registration Act or effected by a court decree. However, an oral partition may be accepted if it is supported by public documents and the partition is made as if made by a court, only in exceptional cases. It must be noted that a plea of partition based on oral evidence is to be rejected outrightly It has also been ordered by the Supreme Court that cases relating to the right to property of a daughter pending in the subordinate courts be adjudicated within six months from the date of judgment How can Lawtendo help? LawTendo has around 15000+ lawyers across India on our platform. LawTendo strives to facilitate cost-efficient and quality legal service to our clients. You can contact us at +91-9671633666 or [email protected].
