By-Arshdeep Bedi
(Punjabi University, Patiala)
INTRODUCTION
The Hindu Succession Act, 1956 has undergone a lot of change by the virtue of the Hindu Succession (Amendment) Act 2005. Section 6 of the act has been replaced by a new provision. The amendment was based on the 17th Report of Law Commission of India on 'Property Rights of Women: Proposed Reforms under Hindu Law' dated 5th May 2005. Under the chairmanship of Justice B.P. Jeewan Reddy, this commission recommended the removal of anomalies and ambiguities concerning the Property rights of Hindu women under the Act of 1956. The amendment gave coparcenary rights to daughters as similar to sons. Since discrimination solely based on gender is completely unjust. Recently in judgment (dated 11th August 2020) by Hon'ble Supreme Court of India, this right was given retrospective effect and gave full-fledged property rights to daughter in the property along with sons. As beautifully quoted by the hon’ble court as “A daughter always remains 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 a combination of two words Co + Parcenary i.e. together and heirship. Coparcenary is created by law as a legal right in the parental property by birth & not by the act of parties (except by adoption). Earlier the Coparcenary was limited to male members only but now the situation is different.
BACKGROUND
Before the passing of the Hindu Succession Act 1956, people were governed and ruled by customary laws that were different from region to region. These laws were popular for their gender discrimination and caste discrimination.
LAWS PREVAILING BEFORE HINDU SUCCESSION ACT, 1956
Before the passing of the Hindu Succession Act, there were various laws which dealt with the rights of women concerning a property such as:
1. Hindu Law of Inheritance Act, 1929: It was the first legislation to bring Women in the picture of Inheritance. This act gave rights of Inheritance upon three female heirs which are - daughters, grand-daughters, and sisters.
2. Hindu Women’s Right to Property Act, 1937: It was legislation conferring ownership rights on women. This law brought changes in the earlier followed customary laws. This act took into account the rights of widows and divorcees as earlier there was no such law to deal with this problem. But this act was also not able to achieve gender equality.
SCENARIO Of 1956 (Hindu Succession Act 1956)
The Hindu Succession Act was passed in 1956 to amend and codify the laws relating to intestate succession among Hindus. It focused on giving equality according to Article 14 and tried to uplift the position of women by providing them with the Inheritance share in their father's property. But this right was limited to share of separate property owned by the father through a notional partition. Daughters had no right in ancestral property. Section 6 of the act deals with the Devolution of interest in Coparcenary property of Hindu males and recognizes the rule of devolution by survivorship among members without including female members. Thus, inequality continued.
Ignorance of Article 14
The Act (Hindu Succession Act 1956) tried to include daughters in separate property of father but excluded females from inheritance in the ancestral Property on the sole ground of sex, is a complete negation of Article 14 of Indian Constitution which provides Right to Equality and thus leads to discrimination and oppression. Therefore, the Amendment in 2005 was introduced to provide equal rights to daughter (as the son coparcener).
The Hindu Succession (Amendment) Act 2005
It amended the act, to give Coparcenary Rights to daughters as well. The act was enacted to increase the rights of women and daughters and bring them at par with male members. By way of the amendment the daughters whether married or not got coparcenary rights and liabilities equal to sons. It also provided that the females could also act as the Karta of the family which they were not able to act earlier under this law. Moreover, the amendment brought forth the rule of Succession over the rule of Survivorship.
Section 6 of the act was substituted which states that: On and from the commencement of the Hindu Succession (Amendment) Act,2005, in a joint Hindu family governed by the mitakshara law, 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 if she had been a son,
Be subject to the same liabilities in respect of the said coparcenary property that of the 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 sub-section 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.
Any Property to which a female Hindu becomes entitled under subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
Points of Consideration:
1.If the father passed before 9.9.2005 (Amendment Date) then the daughter doesn’t become coparcener. As held in K.M. Thangavel v. K.T. Udaya Kumar case A.I.R. 2014.
2.The provision is available to all living daughters those born before or after the Amendment. As held in the case of Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari (A.I.R. 2014 Bom. 151)
Landmark Judgement of Prakash & Ors.v. Phulavati & Ors. [A.I.R. 2015 RCr (civil) 952]
The Facts of the case were:
Phulavati claimed partition and separate share in her father's property. While the suit was pending, the amendment came into force and the issue was that whether it was retrospective in nature or not. The Supreme Court held that daughters will have a right on and from the commencement of the amendment. Thus, it was cleared by the Hon’ble court that the amendment is prospective, which means that the right of a daughter in the Coparcenary property would be given only to living daughters of the living coparcener fathers, on and from the commencement of amendment that is 09.09.2005.
In Simple words it can be said that the Supreme Court has held that the amended section has prospective effect. The right conferred on the daughter of a coparcener on and from the commencement of the Amendment. The daughter and her father should be alive on the date of the amendment coming into force i.e. 9.9.2005 for the operation of this provision.
The court summed that:
1. An amendment of a substantive provision is always prospective unless expressly or by necessary intendment it is retrospective.
2. Rights apply to living daughters of living coparcener as of 9.9.2005 irrespective of when the daughter is born.
3. Disposition or alienation including partitions which may have taken place before 20th December 2004 as per law will remain unaffected.
4. Contention that the amendment to be read as the retrospective being a piece of social litigation cannot be accepted.
Meaning of Prospective Effect and Retrospective Effect
The Statutes are considered to have either a prospective effect or to have a retrospective effect from the point of the application of the statute. Which means that from which date the proposed statute or the amendment shall be given legal effect.
Prospective Effect: The prospective effect means that the statutes or the amendments passed shall apply to future transactions. Which means that the earlier transactions are left untouched.
For example: If A died before any date 9.9.2005 (which is the amendment date) consider in 2002 or so, then his daughter would not be considered as the coparcener and the old section would apply to her.
Such was the case with the amendment of 2005. It was having a prospective effect, affecting only the future transactions and leaving the past transactions.
Retrospective Effect: Whereas the retrospective effect means that the Statutes and the amendments shall be applicable and effective from the past transactions, done earlier, and also the future transactions. It affects the past and future both.
For example: If A died before or after the passing of the amendment, consider in 2000 or 2010, her daughter would be considered as the coparcener.
THE VERDICT of 2020: The Present Scenario
The Hon’ble Supreme Court (Bench of Hon’ble Justices Arun Mishra, Hon’ble Justice S. Nazeer, and Hon’ble Justice M.R. Shah) on August 11, 2020, in the case of VINEETA SHARMA Vs RAKESH SHARMA & ORS. (CIVIL APPEAL NO. DIARY NO.32601OF 2018) stated that:
Daughters will have equal Coparcenary Rights in joint Hindu family properties and the section would have a retrospective effect which was earlier prospective effect.
Hon’ble Court quoted ‘A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life.’ The court upheld the rights of the daughters even if the father has died before the enactment of the Amendment Act, 2005 and daughters have the same rights and liabilities as a son.
The decision of 2015 Prakash & Ors. v. Phulavati & Ors. was overruled which provided rights to living daughters of living coparceners as of 9.9.2005. Moreover, the Court held that the right of a coparcener is by birth and whether the father was living or not as on 9.9.2005 is not essential.
Court further summed the 121 pages long judgment as:
1. Earlier judgment of 2015 overruled and amended section would have retrospective effect.
2. Disposition or alienation including partitions which may have taken place before 20th December 2004 as per law will remain unaffected.
3. Coparcenary Rights are by birth and the fact whether the father was living or not is not necessary.
4. Unregistered oral partition, cannot be accepted as the statutory recognized mode of partition (except in exceptional cases).
5. Daughters not to be deprived of their right to equality, thus the pending matters are decided, as far as possible, within six months.
Thus, the daughters born before or after 2005, whose father (coparcener) whether living or dead shall be considered as coparceners and would have equal rights in Coparcenary property as sons.
Conclusion:
The concept of Coparcenary has gone through many changes. The act of 1956 tried to give legal rights to female heirs in the separate property of fathers but it lacked behind in giving rights to daughters the same as sons in the ancestral property which negated and oppressed the constitutional right of equality. The discrimination made only on the ground of gender is completely unjust. Then came the big step to dismantle the patriarchal forces as the Amendment of 2005. It gave women the economic growth and freedom as by including them in the property rights as the coparceners. But giving it only a prospective effect lacked it behind in giving equal rights and opportunities to the daughters. There was a need to create social awareness and educate people, to change their mindset towards the topic of gender equality. There was also a need to focus on the attitude in favour of equality for all by enacting uniform laws. Therefore, on August 11, 2020, there came the Landmark judgment which gave Coparcenary Rights to daughters and giving it a retrospective effect. Now the daughters will have the same rights as sons even if the father died prior to 09.092005.
This can be considered as upliftment of women and bringing them equal to the status of men. This Judgement played a vital role in bringing daughters on par with sons.
References:
1. Hindu Succession Act, 1956
2. Hindu Law of Inheritance Act, 1929
3. Hindu Women’s Right to Property Act, 1937
4. Modern Hindu Law
5. Times of India
6. Dictionary.com
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