Supreme Court Ruling on Hindu Succession (Amendment) Act, 2005: Parity Achieved?
Authored By- Sonika Khandelwal
Abstract: Women are always considered as a secondary citizens in India. Although, recent judgement and many more steps taken by parliament to raise the stature of women should be praised but the real picture of gender-gap can be seen through related global indexes. In this article author tries to clear the air about recent issues related to succession and its effect on society.
“Secure land rights are essential for women’s economic empowerment, and creating incentives for investments, providing an asset that can be leveraged for agriculture or business development and offering a solid foundation for financial stability” – Anna Wellenstein
The conflicting opinion between Prakash v Phulavati and Danamma@ Suman Surpur v. Amar with regards to interpretation of section 6 of the Hindu Succession Act, 1956, has referred to the larger bench which resulted in the present judgement of Vineeta Sharma v. Rakesh Sharma upholding the right to equality of daughters in the coparcenary property. Before analyzing the judgement let’s see the legal concepts involved.
Hindu Undivided Family: It consists of all persons lineally descended from common ancestors and includes their wives, widows and unmarried daughters. The Hindu Joint Family status is by birth and the joint family property is only an addition of the joint family.
Coparcenary: It includes only those persons who acquire by birth an interest in the joint property. It includes the holder of the property, sons, grandsons, and great-grandsons. It’s a narrower body than a joint Hindu family as it includes only male persons.
Incidents/Rights of coparcenary: As stated by SC in State Bank of India v. Ghamandi Ram-
a) Lineal male descendants of a person up to 3rd generation and acquire on birth ownership in the ancestral property.
b) Such descendants have a right to seek partition.
c) Each member has joint ownership over the entire property.
d) The possession and enjoyment of the properties is common.
e) No alienation of the property is possible unless it is for legal necessity, without the concurrence of the coparceners.
f) The interest of the deceased member passes on his death, to the surviving coparceners.
Under Mitakshara law which is prevalent all over India except for Bengal and Assam, the property of the deceased is transferred through survivorship and not by succession. After the amendment of 2005, the daughters are also considered as coparceners equal to that of sons in all the rights and obligations. Now, the devolution of property through survivorship has come to an end and all the property after the death of the coparcener will devolved through succession by way of notional partition. Partition under the 2005 amendment includes partition by the execution of a deed duly registered under Registration Act or a partition effected by a decree of court. The oral partition which was prevalent in the ancient Hindu Shastric law, has no validity now.
Section 6 of the Hindu Succession Act, 1956, says that on and from the commencement of Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall:
a) By birth become a coparcener in her own right in the same manner as the son.
b) Has the same rights in the coparcenary property as she would have had if she had been a son.
c) Be subject to the same liabilities in respect of the said coparcenary property as that of a son.
Proviso: Nothing contained in this subsection shall affect or invalidate any disposition or alienation of property which had taken place before 20th December 2004.
Supreme Court in Prakash v Phulavati case: SC held that the rights under the amendment are applicable to living daughters of living coparceners as on 09th September 2005 (date of commencement of amendment act 2005) irrespective of when such daughters are born.
Supreme Court inDanamma@ Suman Surpur v. Amar case: SC held that the share of the father who died in 2001 would also devolve upon his two daughters who would be entitled to share in the property. That means, according to the SC, amendment is applicable to living daughters of deceased coparceners as on 09th September 2005.
Supreme Court Judgement in Vineeta Sharma case: a) Daughters, married or unmarried, will get share in the coparcenary property irrespective of their date of birth. b) As on date of commencement of amendment act of 2005 living daughters of the deceased coparceners will also get their due share since coparcenary is by birth and not by inheritance. c) Oral partition along with documentary evidence is valid and only invalid partition without documentary support can be opened for litigation. d) Now, the amendment of 2005 will have a retroactive effect.
This is a landmark judgement in the history of India since Independence which gives daughters their due rights in full capacity in the ancestral properties. It’s a further step towards achieving right to equality. However, this judgment has the capacity to open up a pandora box of litigations furthering adding to the overloaded cases of judiciary.
Although the right to property could be said to be a beginning of reducing gender-gap but the gender-gap index in which India has slipped four places to rank 112 in terms of women’s health and survival and economic participation clearly shows that achieving equality is a distant dream. India’s share of Women in Parliament is a meagre 12.6% in the lower house and 11.5% in the upper house. So, India first needs to reserve adequate number of seats for women in the parliament, which is a representative institution. India has to tread a long path to achieve SDG 5 - “achieve gender equality and empower all women and girls”.
1. Mulla’s Hindu Law