Decoding Right to Property for Female Coparcenary

Abstract 

In order to grant daughters the status of coparceners, or the same rights on the property of their fathers’ ancestors, the Hindu Succession (Amendment) Act, 2005 was enacted.  Coparcenary property was a special kind of joint family property that was exclusively inherited by male lineal descendants of a common ancestor by birth prior to the 2005 Amendment Act. The Hindu Succession Amendment Act aimed to do away with the gender discrimination found in the Hindu succession law and bring it in accordance with the constitution’s requirements for equality. 

Keywords Female Coparcenary, Ancestral Property, Discrimination, Hindu Succession Amendment Act, 2005, Equality.

 Introduction 

According to Hindu law, the concept of coparcenary refers to the shared ownership and succession of ancestral property among male descendants of a common ancestor, as established by the Hindu Succession Act of 1956. A coparcener is a person who, by virtue of their birthright, shares in the coparcenary property with other coparceners. Before the Hindu Succession (Amendment) Act of 2005, the rule of survivorship applied to coparcenary property. This meant that, instead of passing to his heirs through testamentary or intestate succession, a coparcener’s share would be divided among the surviving coparceners according to the survivorship principle. 

Prior to the Hindu Succession Amendment Act of 2005, coparceners may only be male members of a Hindu joint family. Daughters were not eligible to inherit any of the family’s property by birth, nor were they included in the coparcenary. Section 6 of the Hindu

Succession Act 1956 permitted for the transfer of a Hindu male’s stake in coparcenary property upon his death, although it only awarded them a small portion of the property as heirs. The daughter’s portion may be stripped or diminished if a son was born after the father’s death or partition, and it depended on the presence and number of sons in the joint Hindu family.

The patriarchal belief that daughters joined their husbands’ families after marriage and ceased to be members of their own family was the basis for the exclusion of daughters from the coparcenary. These claims, however, were refuted by a number of women’s rights organizations and legal professionals who emphasized the unfairness and prejudice that women experience when it comes to property rights and inheritance. They called for the reform of Hindu law to reflect the fundamental principles of equality, dignity, and fairness for all people, as well as the demand that females be granted the same position and rights as male  in the coparcenary. In response to these concerns, the Hindu Succession Amendment Act of 2005 was enacted. In Section 6 of the Hindu Succession Act 1956, new provision was added by the modification, granting females the same rights and obligations as sons as coparceners by birth. The amendment also stated that the daughter would have the same rights and obligations as a son and would continue to be a coparcener even after being married. The modification also eliminated the survivorship provision and stipulated that a coparcener’s share of the coparcenary property shall be distributed in accordance with the Act’s requirements upon his death, whether through testamentary or intestate succession.

Contradiction between Indian Constitution & Mitakshara School

Indian society now has more dimensions in several areas thanks to the Indian Constitution. All laws that contradict or violate the prohibition on discrimination have been abolished, according to Article 14 of the Constitution It has been decided that there are no restrictions on fundamental rights. Similar prohibitions and discrimination based on caste, religion, sex, color, place of birth, and other characteristics are eliminated by Article 15.

The Hindu joint family and the Mitakshara coparcenary, which is a subdivision of the former, are two examples of institutions whose membership privileges are essentially unequal. This imbalance was the driving force behind parliament’s 2005 amendment to the Hindu  Succession Act 1956. Coparcenary property is plainly patriarchal since a man in a Hindu joint family is entitled to property by birth. The discrimination women experience today is also influenced by their religious views, which are the outcome of outdated customs that treat them unfairly. The goal of establishing a gender-neutral system is essentially defeated due to various schools such as Mitakshara School.

Hindu Succession Amendment Act 2005

The parliament amended the Hindu Succession Act, 1956 in 2005 to give daughters the status of coparcener, putting them on par with sons in the family and granting them similar inheritance rights. 

In Vineeta Sharma v. Rakesh Sharma theSupreme Court decided that a daughter is a coparcener by birth and that it makes no difference if the father was alive or deceased on the day of the amendment.

Gender discriminatory provisions in the Hindu Succession Act, 1956 were removed by the Hindu Succession (Amendment) Act, 2005. The amendment states that a coparcener’s daughter will automatically become one by birth, just like a son. The daughter will now have the same rights as a son in the coparcenary property, which is the ancestral property of the Hindu undivided family.

Section 23 of the Hindu Succession Act is also removed, which forbade female heirs from asking for a residence that was fully occupied by a joint family to be partitioned before the male heirs made the decision on how to split their separate share. Section 24 of the Act has been removed, so that a widow is no longer entitled to inherit her late husband’s assets upon remarriage. This Act has significantly altered the situation for all state governments. The rights of widows were limited to the extent of coparcenary rights as the 1956 legislation.

Widows are still not granted a coparcenary right, but daughters are now granted an equal share in property. 

Research Methodology: 

Women now enjoy equality in the sphere of property law due to the Hindu Succession Amendment Act 2005.  The majority of the information provided in this paper was gathered from websites, books, and publications.

Review of Literature: 

This paper highlights the hardships faced by women, who, although making up an significant percentage of the population, are always the targets of injustices, humiliations, inequity, and prejudice. They had minimal property rights when it came to inheriting their parents and husbands’ estates.  Assets brought by women at the time of marriage, known as stridhan, were available for their survival and served as a form of security in the event that she face mistreatment or violence in her married household. 

Hindu women’s property rights are the result of the continuous conflict between male-centric Indian culture and moderate forces of today. Since the dawn of Indian civilization, Hindu women’s property rights have been severely restricted.  The Dayakshra School of Law and the Bhagava School of Law, two Hindu schools that were separately permitted in various sections of the country, had a significant influence on the property inheritance laws of ancient India. 

The current Hindu property inheritance law is still influenced by these laws and regulations. Although women in either of these schools received less property advantages than men, Dayabhaga granted them somewhat greater rights than Mitakshara. Hindu laws vary from one another especially when it comes to property rights. There are several Hindu legal schools that have a distinct status throughout different states; the two largest legal schools are the Mitakshara and Dayabhaga schools. All of India followed the Mitakshara School, with the exception of the eastern region; on the other hand, the Dayabhaga School was practiced across the eastern region, especially in the regions of Bengal and Assam.

Women’s property rights were typically restricted by the Mitakshara school, which states that they would never be able to become coparceners. The widow of a coparcener who passed away was not entitled to his share, nor was she allowed to use a portion of his share against his siblings. In contrast, Dayabhaga school was more lenient when it came to women’s legacy and their status as beneficiaries than Mitakshara school. Widows were granted more notable property rights in Dayabhaga school than in Mitakshara school, where they could obtain their deceased husband’s share and use a portion against their siblings. Despite the chance provided by Dayabhga School, this strategy has drawbacks of its own. For instance, in the event of a woman’s death without a son, her husband’s share was not transferred to her daughters; instead, it was obtained by the nearest male beneficiary.

As events have changed recently, there has been a perception that women should have the same status and rights as males. Therefore, the Hindu Succession Act, 1956, which was the first significant enactment recognizing women’s rights to property was introduced.  Though the Hindu Succession Act attempted to do away with prejudice, several discriminatory provisions remained in place, including those pertaining to dwelling rights, devolution of tenures, mitakshara coparcenary, and partition . By amending the coparcenary system and granting daughters equal property rights and the opportunity to live on par with their sons, the Hindu Succession (Amendment) Act, 2005 attempted to lessen prejudice between gender discrimination.

The Concept of Female Coparcener after Amendment 2005.

The Hindu Succession Act, 2005 amendment was a significant advancement towards gender equality as it granted daughters the status of coparceners, signifying the improvement of women’s status in the economic, and cultural spheres. 

The legislature modified the conventional definition of coparcenary, which exclusively covered males, with the revision made in Section 6. Due to their entitlement to family property, females born into joint households are now financially secure. In the event that the daughter’s marriage dissolves, she will receive an equal share of her father’s property as well as a portion of the notional partition. Rather than receiving a third of the property, she will receive an equal share with her brother who is a male.

The 2005 amendment that allowed women to become Karta of the family, a right formerly reserved for male heirs, allows them to fully enjoy joint family property, regardless of whether they inherited it from their parents or their in-laws.

The repeal of Section 4(2), which gave the gender-biased state laws a forum to consider devolution of tenancy rights in agricultural land, is another noteworthy accomplishment of the  Amendment, 2005. As a result, property rights were more gender-biased, with male descendants receiving a preference in the aforementioned state laws while female descendants were granted limited ownership.

It further claims that this amending legislation nullified Section 23, which denied married daughters residential rights until they were divorced, abandoned, or widowed. Because they were inheriting rights for a widow of a deceased son, the daughters were allowed  to live and apply for partition, and as a result, they were now benefiting from the abrogation of Sections 23 and 24.

The question of whether the amendment was prospective or retroactive arose after it was passed. After over a decade of deliberation and numerous case laws, the Supreme Court finally addressed this issue in 2020, providing a comprehensive rationale in the Veeneta Sharma v. Rakesh Sharma case. The court determined that daughters born before 9.9.2005 would also be eligible to receive their share of any partition, alienation, or disposition that occurred before December 20, 2004, and that they would receive coparcener status in the same manner as their sons if they were born before or after the effective date of the Act’s amended Section 6. As a result, the Act has retroactive application.

A testamentary disposition or partition executed before December 20, 2004, cannot be rendered void by anything in this Amendment. The amendment provided protection for married daughters; daughters who got married after the amendment but are still unmarried will likewise be regarded as coparceners, as well daughters who got married before the amendment. Following the amendment now daughters as a coparcener has the legal right to fill petition in the court to secure her rights.

Landmark Case Law regarding Right to Property for Females.

Prakash Vs Phulavati

The Karnataka High Court’s ruling gave the statute retroactive effect by determining that the daughter would still be entitled to an equal share of the ancestral property even if the father passed away before it went into force. 

On appeal, nevertheless, the Supreme Court overturned the decision made by the High Court. It stated that Legislature did not intend for the literal interpretation of the Act’s provisions to have a retroactive meaning, it could not be done. Furthermore, it made clear that, although proving the daughter’s birth after the amendment was not required for a claim to be valid, both the father and the daughter had to be living on September 9, 2005, the date the amendment was put into effect, regardless of when the daughter was born. 

Survivorship principles would apply to all property successions for fathers who passed away before this date. This meant that if either the father or the daughter had died by the specified date, before the amendment, the property would be divided using the survivorship concept in accordance with the Hindu Succession Act, 1956, or Mitakshara Law.

Danamma Vs Amar Singh

This verdict, which took a conflicting and ambiguous stance on the rights of Hindu daughters, granted rights to the daughter of a father who had passed away in 2001, long before the amendment, although expressly agreeing with the Phulavati case’s ratio. The justification for this decision was inadequate.  

As long as the Partition suit was still active and not yet resolved at the time of the amendment, it was held that the daughter was entitled to an equal portion of the ancestral property in the event that the father passed away before the amended act went into effect

.

It contended that the daughters’ right to coparcener was granted by their own factum of birth inside the family, but it also upheld the possibility of a Phulavati decision. Even though it greatly expanded the pool of women who may assert rights under the Amended Act, the reasoning behind it was unclear and caused a great deal of uncertainty.

Vineeta Sharma Vs Rakesh Sharma

In this case, the Supreme Court ruled that the Amendment Act of 2005 applied retroactively. It also made clear that, regardless of the father’s passing date, a Hindu daughter was a coparcener from birth and was entitled to her inheritance without hindrance. The birth of a new member determines coparcenership, in accordance with the Community of Interest principle, rather than the passing of an existing coparcener. Therefore, it concluded that the amendment applied to all daughters who were alive at the time of the amendment’s enactment, regardless of the father’s date of death, and who were born before September 9, 2005, with the exception of those in which a partition had already occurred before December 20, 2004, in which case the amendment would not be reversed. Females got the same rights and obligations.

Suggestion

The Hindu Succession (Amendment) Act, 2005, a landmark piece of legislation, granted daughters the same rights as coparceners in the ancestral property of a Hindu joint family. However, the Act also faced certain challenges and criticism about its interpretation and application. Here are some suggestions and potential modifications to the Act’s ambiguous sections:

The public authority should raise widespread awareness of the rights available to women. Even if a woman is unaware of these rights, it makes no difference. Not just for Hindu women, but for women of all other religions as well, lawful education camps should be organized at the local level. In modern era, a country cannot advance if its women continue to lag behind. As a result, equal rights for women and men must exist both in theory and in reality. Only then can a country go forward as planned.

Ensuring that the Act is not abused or exploited by the male family members in order to deny the daughters their legitimate portion of the coparcenary property, for example, by making false wills, transfers, or divisions before or after the Act’s creation

The amendment should include a mechanism to guarantee the efficient execution and enforcement of daughters’ coparcenary rights, such as educating women about the Act’s rights and remedies and empowering them by offering support and legal help to females confronting obstacles, prejudice, or unfair treatment in courts or other settings so they can assert their rights; also, by punishing those who abuse or impede women’s rights.

By strengthening the institutional and legal framework to make it easier to enforce the Act; some examples of this include streamlining processes, cutting costs and delays, and guaranteeing the integrity and accountability of the authorities.

In modern era, a country cannot advance if its women continue to lag behind. As a result, equal rights for women and men must exist both in theory and in reality. Only then can a country go forward as planned.

Conclusion

The origin of all social practices is culture. But the minute practitioners lose sight of its core principles, the practice becomes an unquestionable, orthodox tradition that must be mechanically followed. A great deal of our deeply held customs and beliefs are no longer relevant in the modern world. Traditionally, Hindu women have not been able to benefit from laws that have been enacted for them since they do not have the resources or mental capacity to fully realize the advantages. Since over ten percent of women are unaware of their rights, the actual situation differs greatly from the legislation’s wording. However, these regulations are a huge step toward achieving gender equality as our country’s founding fathers and the drafters of our constitution intended.

Sneha Shukla

Amity University, Uttar Pradesh.

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