The apex court has settled the issue on the effective date of
the 2005 amendment, by laying no relevance on the date of birth of the daughter
or alternatively the date of death of the father. So long as the daughter is
alive post 2005, she has an equal right as a son in the coparcenary property
The Supreme Court ruling that daughters have equal coparcenary
rights in a Hindu Undivided Family (HUF) property even if the father died
before the Hindu Succession (Amendment) Act, 2005, came into force is a
‘progressive step’, and settles the ambiguity surrounding the nature and extent
of a daughter’s rights to inherit the property, legal experts told Moneycontrol.
The
apex court's verdict came on the issue whether the amendment to
the Hindu Succession Act, 1956, granting equal rights to daughters to inherit
ancestral property would have retrospective effect.
What this means is that whether with the passing of the Hindu
Succession (Amendment) Act, 2005, a
daughter of a coparcener shall by birth become a coparcener in
her own right in the same manner as the son, or if she could be denied her
share on the ground that she were born prior to the enactment of the Act on
September 9, 2005, and, therefore, cannot be treated as coparcener.
A
coparcener refers to a person who assumes a legal right in parental property by
birth only.
“The Hon'ble Supreme Court has taken a progressive step towards
equal rights as provided for under the Constitution,” said advocate Yudhist N.
Singh, senior partner, YNS & Associates.
Date of daughter’s birth, death of
father not relevant
The apex court has clearly settled the issue on the effective
date of the 2005 amendment, by laying no relevance on the date of birth of the
daughter or alternatively the date of death of the father, whether prior to the
2005 amendment or post. So long as the daughter is alive post 2005, she has an
equal right as a son in the coparcenary property.
The matter of Vineeta Sharma v.
Rakesh Sharma, decided by a three-judge bench of Justices Arun
Mishra, S. Nazeer and M.R. Shah “is a truly progressive judgment on women’s
rights”, said Payal Chawla, founder, JusContractus.
The reference to the three-judge bench was made in view of two
conflicting judgments of the Supreme Court in the matter of
Prakash v. Phulavati (2016)
and Danamma @Suman Surpur v. Amar (2018). The
Court in Vineeta Sharma has overruled Prakash v. Phulavati and
partially upheld the Danamma judgment, she explained.
The judgment says if a daughter is born before
September 9, 2005, she would become a coparcener, in her own right, in the
same manner as sons i.e. with same with same
rights and liabilities, provided there has been no
parting/partition/or devolution before December 20, 2004.
“The reason is that a daughter is a coparcener, with effect from
the date of amendment and she can claim partition in her
own right by birth and ‘not by dint of inheritance’,”
added Chawla.
Therefore,
it is irrelevant that her father was alive or not on the cut-off date of
September 9, 2005.
Clarifies that coparcenary is a birth right
The
top court in its ruling conferred an equal status of coparcener on the daughter
born before or after amendment to the Section 6 of the Hindu Succession Act,
1956, in the same manner as son.
“The
daughter shall now have equal rights in the parental property even if father
was not alive on 9.9.2005. It is a landmark judgment and I feel it is another
big step towards gender equality and women empowerment,” said Sunil Tyagi
of Zeus Law, a law firm.
It
clarifies the ambiguity over the extent of a daughter’s rights in an HUF
property.
“This
judgment has settled the ambiguity surrounding the nature and extent of a
daughter’s rights in a HUF property and thus settled a disputed question of
law. This clarification was vital in setting aside the grip on previous
decisions accorded coparcenary rights to daughters only if both father and
daughter were alive as on September 9, 2005, when the amendment was notified,”
said Sonam Chandwani, managing partner at KS Legal & Associates.
The
judgement is a "welcome move" and clears all webs around a daughter's
rights and interests over an HUF property.
“While
clarifying that coparcenary is a birth right, the verdict confirms that a
daughter cannot be deprived of the right to equality granted to her under
Section 6 of the Hindu Succession Act, 1956, even in case the father
expires before the 2005 amendment. The ruling aids the society at
large in moving towards a more sensible conclusion and breaks free from the
deadlock of the dated patriarchal system,” said Rahul Arora, partner, Trilegal.
“Finally
it’s crystallised the law with respect to rights of women as coparceners and
removing the inequality under succession laws that had been prevalent
historically. A huge number or cases all over the country were grappling with
this issue and hopefully now things can proceed expeditiously,” said Vaibhav
Gaggar, managing partner, Gaggar & Associates.
Can partitions before 2005 amendment be
reopened by a daughter?
The
ruling is important for various reasons. One it clearly sets to rest whether
partitions which were undertaken prior to the 2005 amendment can be re-opened
by the daughter.
“On
this point the apex court has clearly stated that if a partition has taken
place prior to 2005, such a partition cannot be re-opened, so long as the legal
process has been followed of a documented partition deed and registration of
the same,” said Bijal Ajinkya of Khaitan & Co.
“Obviously,
this throws out of the window situations where sham partitions are shown as
undertaken prior to 2005, so as to avoid having the daughters consent taken or
allowing them any rights,” he said.
The
judgement also states that in this context an oral partition is not a
statutory recognised mode of partition and the same can be
accepted only in exceptional cases if the same is backed by public
documents or affected by a decree of a court.
“What
this means is that if any party is relying on oral partition to beat the
interest of daughters, the standard of proof required would be extremely high
and would require the same to be proved through document on a court decree,”
said Chawla.
Often
coparceners enter into a family arrangement
or oral
partition, and it may not be necessary to register such a partition.
Any coparcener relying upon any family arrangement or
oral partition must prove the same by leading proper documentary
evidence, the order said.
“The Court
has to keep in mind the possibility that a plea of oral partition may be set
up, fraudulently or in collusion, or based on unregistered memorandum of
partition which may also be created at any point of time.
Such a partition is not recognized under Section 6(5),”
the order noted.
Next challenge
An
amendment to Section 15 of the Hindu Succession Act, 1956, is the need of the
hour, say experts.
“I
strongly believe that the time has come to make an amendment to Section 15 of
the Hindu Succession Act, 1956, for changing the present scheme of succession
to the effect in case a female dies intestate leaving her self-acquired
property with no heirs then an equal right is given to her parental heirs along
with her husband heirs to inherit her property,” said Tyagi.
One
issue which is still open and is a matter of legal debate is “whether the
lineal descendants of a daughter partake the same rights as the lineal
descendants of a son”, added Ajinkya.
The
Supreme Court order eliminates all challenges to the equal rights of women as
coparceners in HUF assets except where the assets have been divided on or
before the cut off date of December 20, 2004.
"Many ancestors who did not believe in this equality and
never imagined that law will change to this effect may turn in their grave.
This is a good development for gender equality, but will certainly open a
Pandora box and unimaginable contentious issues, more so as this is now
retrospective as well as retroactive," said Rajesh Narain Gupta, managing
partner, SNG & Partners.
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