Rights of Female Coparcener Under Hindu Succession Act, 1956

Introduction

The rights of a female coparcener have been a quite a controversial subject of not only debates but even law suits. A year ago, a bench of the Apex Court delivered a remarkable judgement protecting the rights of Hindu women vested in joint family property. The judgement not only recognizes the right of women to inherit their ancestral property but has also made considerable efforts to help determine the applicability of the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as “the Amendment”) to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as “the Act”). The aforesaid judgement particularly focused on Section 6 of the Act which has been a subject matter of various judgements in the past. Time and again, the Supreme Court of India has made efforts to put an end to similar orthodox and discriminatory practices against female coparceners. In the past, there have been various judgements as well as amendments in laws, made with the intention of setting the path forward for recognizing the rights of the Hindu Women as coparceners.

Understanding the Meaning of Coparcener

One cannot study the working of a Hindu Undivided Family (hereinafter referred to as “HUF”) unless they understand the meaning of and the functions undertaken by Coparceners and a Karta. This is simply because the concept of coparcener lies at the center of rights associated with ancestral property of a Hindu. A coparcener can be understood to mean a person who possesses a right in the ancestral property. The coparcener is entitled to demand partition in the Hindu Undivided Family property.

In accordance with the Act, a coparcener is a person who is born in a Hindu Undivided Family. An individual becomes a coparcener by birth and may only be regarded as one if he or she is within four degrees in lineal descendance from the common male ancestor. What makes the concept of coparcener so different and unique from the rest is that only a coparcener has the right to demand for partition i.e., the other members of the family cannot exercise their claim over the HUF property.

Female Coparcener – An Alien Concept?

The Mitakshara Law did not quite recognize females as coparceners. This law was extremely restrictive and narrow. Simply put, only the male members who by birth acquired an interest in the HUF property were recognized as coparceners. Woman were strictly prohibited from being recognized as coparceners. Subsequently, the wives, mothers, sisters, daughters, daughter-in-laws, etc were devoid of their title and rights as ‘coparceners’. Nonetheless, Marumakkattayam or Aliyasanthana law was not as patriarchal as the Mitakshara law. Under this branch of customary law, all the members, including females, had equal rights in the joint property. Similar to the Mitakshara Law, this law had a few shortcomings as well. In Marumakkattayam law, the sons and daughters of the female members were coparceners leaving aside the sons, daughters and wives of the male members of the family.

Rights of Female Coparcener Under Section 6

Section 6 of the Act elucidates upon the devolution of coparcenary property in case of intestate succession. Previously, if a Hindu male died intestate, the Mitakshara coparcenary property was to be devolved by survivorship. According to the rule of survivorship, upon the death of a member of joint and undivided family, the share in such property would be carried forwarded to the surviving coparceners. Such coparceners were solely men. The law did not precisely recognize the rights of a female as a coparcener in inheriting her father’s ancestral property. The Act simply acknowledged the sons as the coparceners leaving beside the daughters. The concept of devolution of rights of the coparcenary property seemed highly patriarchal in denying and disregarding the coparcenary right of a Hindu female by recognising only the male entitlement to the coparcenary property in a HUF. The daughters were merely regarded as nothing more than legal heirs of their fathers. Hence, they were strictly entitled to a share of the separate property owned by the father through the notional partition. Unlike the male heirs, they were not regarded as coparceners. Hence, their rights as coparceners were non-existent.

Section 6 of the Act was amended in 2005. This amendment recognized and upheld the rights of a daughter as a coparcener, that were vested in a HUF property. The amendment sought to strike a balance and held the daughters in an HUF at par with the sons. After the amendment, they were not only heirs but also coparceners in an HUF who were equally entitled to the interest vested in the HUF property. This amendment brought about significant changes in this law. The sons and the daughters were now held at par with respect to their right in the property and also shared the same liabilities as given in section 6 (1).

Section 6 (2) states that the property acquired by a female Hindu by virtue of this section can be disposed of by her by testamentary disposition. Section 6 (3) explicitly disregards the rule of survivorship and upholds that the property of a Hindu in case of Joint Hindu Family governed by Mitakshara Law is to be devolved by testamentary or intestate succession under this Act only. Furthermore, subsection 3 provides that the daughter receives the same share as the son, the surviving child of the pre-deceased son or of pre-deceased daughter is entitled to receive the same share the pre-deceased son or of pre-deceased daughter of the Hindu would have received if they were alive and the same would apply in case of a child of a pre-deceased child of a pre-deceased son or of a pre-deceased daughter. As provided in section 6 (4) of the Act, the amendment got rid of the concept of debt repayment where the son, son’s son, son’s son’s son had to repay the debt of their father, grandfather and great grandfathers, provided the debt was contracted before commencement of the Amendment.

Rule of Succession and Rule of Survivorship

Prior to the amendment, the share of every coparcener was constantly changing due to births and deaths in the family. While the birth of a coparcener would result in deduction in the percentage of the share, the death would lead to an increase in the percentage of share. The Rule of Survivorship, envisaged in the Act (prior to the Amendment), sidelined the succession rights of a woman. It was only after the Amendment that this age-old concept was replaced by a modern, non-discriminatory rule i.e., the Rule of Succession. Earlier, the female successors were merely regarded as ‘heirs’. They could only inherit the property upon the death of the Karta. Unlike the female coparceners, the male coparceners were not bound by such rule, they could acquire their share to the property even when the Karta was alive. This evidently highlights the root cause of the problem. This distinction between the rights of a male and female coparcener was purely a discriminatory practice. Nonetheless, the Amendment discarded this discrepancy. Hence, unless there are only male heirs, the rule of survivorship holds no value and devolution by way of succession will always prevail where the coparceners in line of succession are male and female i.e, son/s and daughter/s.

Case Laws on Rights of A Female Coparcener

The amendment did not completely solve the discriminatory issue, instead, it opened the doors for further lawsuits. Now, the courts had to decide whether the amendment was retrospective in nature, could the daughters right as coparceners be affected if the father was not alive on 09.09.2005 i.e., the date of the amendment, etc. The courts have had a quite contradicting opinion on this subject and it was not until the recent judgement that the ambiguities related to this section were removed.

Prakash & Ors v. Phulawati & Ors[i]

In this case, the Apex Court tackled the question of retrospective applicability of the amended Section 6. The Appellants approached the Supreme Court as they were aggrieved by the decision of the High Court for upholding the applicability of Amendment to section 6. The Supreme Court did not rule in favour of the Respondent. The Supreme Court held that the Principal Act i.e., the Hindu Succession Act would apply to the present case, while the amended section would hold no ground. The Court was of the view that Amendment would only be applicable from 09.09.2005. Therefore, the present case could not be governed by the Amendment. Furthermore, the court expressly stated that the Amendment being a social legislation does not render it retrospectively applicable unless the legislature has intended to do so or has explicitly provided for the same.

The Respondent argued that the daughter acquired right to all the father’s property by birth, irrespective of whether the date of the father’s demise was before or after the commencement of the Amendment. The Supreme Court rejected the Respondent’s contention by stating that the legislature made the Amendment applicable from 09.09.2005. Hence, only if the coparcener died after the said date, the provisions of the Amendment would deem to be applicable.

Danamma & Ors v Amar & Ors[ii]

Unlike the judgement pronounced in the aforementioned case, the Supreme Court, in this case held a different view and safeguarded gender equality in cases of inheritance laws. In this judgement, the daughter’s coparcenary rights as per the amended Section 6 were recognized irrespective of the fact that her father died prior to the Amendment and that the daughters were born prior to the enactment of the Act. The court held that as per the words of the amended section, the daughter is a coparcener since birth, hence, recognizing her coparcenary right irrespective of when she was born.

Vineeta Sharma v. Rakesh Sharma[iii]

The landmark judgement, in this case, can be regarded as a turning point for the Rights of a Female Coparcener. This judgement extracted the ambiguities and the vagueness that were created by previous judgements and the contradicting opinion of the courts. The court primarily dealt with two issues:

  1. Whether according to the amended Section 6, the coparcener needs to be alive as on 09.09. 2005 for the daughter to claim rights in the coparcenary property?
  2. Whether the amended section 6 is retrospective, retroactive or prospective?

The Apex Court held that a daughter will be regarded as a coparcener by birth and the date of death of the father i.e., whether he died before the amendment or was alive on the date of the amendment was irrelevant. The Supreme Court, in an attempt to remove the discrepancies in the previous judgements and interpretation of the law, stated that the daughter’s coparcenary right was acquired by birth and whether the father coparcener was alive on 09.09.2005 was immaterial. The court, by rendering such a decision, has cleared the air around the prospective or retrospective applicability/ effect of the Amendment and made it absolutely clear that it would have retroactive effect.

Conclusion

The Amendment was certainly a huge step towards establishing a statute upholding gender equality pertaining to the rights concerning inheritance and succession. The Amendment helped in removing the inadequacies in rights of coparceners, both female and male. The rights provided under the Act were quite limited, restrictive and were only recognizing the son as the coparcener, but the Amendment got rid of this conservative approach. The Amendment facilitated the recognition of a female as a coparcener and bestowed upon her the same rights and liabilities as of that of a male coparcener. The decision of the Supreme Court in Vineeta Sharma’s case sparked an age-old debate around the rights of a daughter in cases of inheritance concerning a HUF property. The judgement not only sought to filter out the ambiguity, vagueness and inadequacies created due to the previous judgements and misinterpretation of the Statute, but also aimed to pave the way for gender equality with pertaining to such laws. This judgement safeguarded the rights of a female coparcener and also created the scope for retroactive applicability of the Amendment. It can be said the position of female coparceners concerning their rights vested in the ancestral property have undergone tremendous changes since the enactment of the Act and will keep evolving with time.

References

  1. Venkatesan, Interview | ‘The Project of Reforming the Hindu Succession Act Is Far From Over’: Dr Saumya Uma, THE WIRE, (August 17, 2020) https://thewire.in/law/hindu-succession-act-women-supreme-court
  2. Vijayant Goel, Analysis of Section 6 of the Hindu Succession Act, 1956, S.BHAMBRI ADVOCATES,(February20,2021)https://www.sbhambriadvocates.com/post/analysis-of-section-6-of-the-hindu-succession-act-1956?lang=en
  3. Admin Lawnn, What You Need To Know About Section 6 of the Hindu Succession Act – The Supreme Court Rule, LAWNN, (November 12, 2018) https://www.lawnn.com/hindu-succession-act/
  4. Shubham Kumar, Coparcenary under Hindu Law, INDIAN LAW PORTAL, (August 8, 2020) Coparcenary under Hindu Law – Indian Law Portal
  5. Danamma Suman Surpur & Another v Amar & Others, Civil Appeal Nos. 188-189 of 2018 | ESCR-Net (September 13, 2021, 03:54 pm)
  6. Mandakini J. and Varsha G Subramanian, Prakash & Ors V. Phulawati & Ors – Inheritance Rights Of A Daughter Over Coparcenary Property, INDIA LAW, (November 6, 2015) Prakash & Ors v. Phulawati & Ors – Inheritance rights of a daughter over coparcenary property (indialaw.in)
  7. Sumit Malik, Coparcenery Rights of Female Hindus, 9, NLSIR, 154, 154-155 (2020)
  8. Meaning of term Coparcener. http://incometaxmanagement.com/Pages/HUF/46-Meaning-of-the-term-Coparcener-of-HUF.html

[i] Civil Appeal No.7217 of 2013.

[ii] Civil Appeal Nos. 188-189 OF 2018

[iii] (2020) 9 SCC 1

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Aayushi Mittra

Aayushi Mittra is a Fourth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of company law but also explore various other fields of law like IPR, Cyber Law, Real Estate, Tech Law and Sports Law. Apart from academics, she immensely enjoys participating in moots, MUNs and article writing competitions.