HINDU DAUGHTERS AS COPARCENER

Preface 

With amendment a question of its nature being retroactive or retrospective arises. Hindu Succession (Amendment) Act, 2005 (hereafter, amendment) was another such amendment. Law acts as an instrument to level the disparity among people of society. By amendment legislature attempted to put son and a daughter at par when it comes to coparcenary rights. Due to conflict on its nature of enforcement a three-judge bench heard the appeal to decide on the same.

Coparcener in Hindu Law

Hindu joint family is not a new concept. It could be traced back to the days when families used to share common house, common traditions be it of dining or devotion. Not just home but source of income was also shared in the form of a joint family business. Properties be it movable or immovable earned through the family business was not owned by a single person but the family. It was used by all members and for all members. Welfare of the family was always prioritised over personal benefit.

In such families, rights of any coparcener over property were common instead of individual rights. Nothing was divided but shared among the coparceners of the family. On the death of a coparcener his property was shared by all living coparceners by the virtue of survivorship. Thus, the size of the share was based on the number of coparceners living.

Unlike Dayabhaga School there is a concept of joint family in Mitakshara School. Coparcenary idea under Hindu Law recognises children, grandsons and great-grandsons son as coparcener who by birth has the rights in the coparcenary property. Karta and his male descendants’ up to three degrees can be a coparcener. Traditionally, only male member was considered to be a coparcener.

Karta is the senior most male member of a joint family who heads the family. He occupies the principle position while deciding the coparcenary of a family. There can be more than one Karta in the Joint Family. It is observed in Shreeama v. Krishavenanama that the Senior male can be Karta without the agreement or consent of the coparceners and he hold the Kartaship.

Confusion in interpretation

Different interpretation of the amendment by the courts led to a confusion in enforcement of Section 6 of HSA,1956 in its amended form.

In Phulavati case the Apex court held that for enforcement of the amendment it is necessary that father of the daughter, who has become coparcener by virtue of the amendment, was living on the day amendment was enforced. It means that, a Hindu daughter has a right to claim partition of a coparcenary property only in cases where her father was alive on 9th September, 2005 i.e. the day amendment was enforced. This judgement didn’t satisfy all but for a time being courts got a precedent to look upon.

After Phulavati judgement the Apex Court had another case on similar grounds as Danamma’s case.Ruling of the Phulavati case was upheld by the Trial and High Court in this case but Supreme Court although agreed with same gave relief to daughter through different route. The Apex Court stated that the partition of a coparcenary property cannot said to be final if final decree is not passed by the court. It was brought before the court that the decree of partition in the disputed cases was passed in 2007 i.e. after the enforcement of the amendment. Considering this fact, the court granted relief to the daughter in the said case.

With the relief granted by the Apex Court, a new doctrine was developed. According to this doctrine the date of father’s death was immaterial if the partition of the coparcenary property is yet to be made. Even in cases where suit for partition was already filed before amendment but by virtue of no final decree, daughter’s interest in the property could be upheld. It is important to note that this judgment entitled a daughter to be coparcener but suit cannot be filed by her but by a son.

By the Danamma case the Supreme Court created an unnecessary principle. The Phulavati case was clearly not overruled. It means a daughter who was made coparcener by the amendment had no rights over the coparcenary property if her father died before the enforcement of the amendment. Thus, any suit by her to claim any rights over coparcenary property was not maintainable in the court. However, with the Danamma’s case, the date of father’s death was immaterial if the partition of the coparcenary property is yet to be made. In such cases daughter would be awarded with the share similar to the son.

This led to confusion as to the enforcement of the amended legislation. Therefore, it was required that court gives a uniform principle for its enforcement. This question was well tackled by the court in a recent case of the Vineeta vs Rakesh Sharma.

Ending of confusion

It was held in the Vineeta Sharma case that the aim of the amended legislation was to make hindu daughter as a coparcenary by virtue of being an offspring of her father not by any date or gender. Therefore, question on the date of father’s death was uninvited. It can be clearly seen that the ruling of the Phulavati case was completely on different tangent.

This judgement ensures that the amended legislation has retroactive effect. Therefore, every daughter who is alive shall get a share in coparcenary property. All pending cases with similar issues shall be governed with this ruling.

Conclusion

Legislature attempted to dilute the gender disparity which is deep rooted in our cultures in the form of negligence of daughters when it comes to the partition of property. Sons were always considered to be the successor. Financial independence is the best way discovered till date to empower a woman. It’s unfortunate that due to different interpretation or confusion over precedent the injustice of ignorance continued for 15 more years.

As the court has stated that the cases already decided with the issues will not be considered though we have better law now. They deserved this right but the uninvited debate took over their chance to claim it. On a brighter side the Supreme Court has curbed the source of such injustice. In justice Mishra’s words "Daughters have to be given equal share of coparcenary rights in share of property like the son." We should look forward for such progressive judgments and legislation but delayed judgment.