Date: 15th Sept, 2020
by Divya Menon, UILS, Panjab University
The three judge Bench of the Hon’ble Supreme Court in Vineeta Sharma vs Rakesh Sharma, (Civil appeal no. 32601 of 2018; Coram: J. Arun Mishra, J. Abdul Nazeer, J. M.R. Shah) on 11 August, 2020 held that the daughter’s right in the property of a Hindu Joint Family is equal to that of a son and these rights are possessed by her irrespective of the fact that her father died before September 9, 2005. (The date of commencement of the Hindu Succession (Amendment)Act, 2005).
Before understanding the importance of the judgement, have a look at the important terminology:
MITAKSHARA JOINT FAMILY: A common ancestor and the lineal male descendants upto any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants constitute a Hindu Joint Family.
COPARCENARY: This is a narrower body of persons within the joint family. It consists of the senior most male member and his three male lineal descendants; in its continuance, the existence of father-son relationship is not necessary.
HINDU SUCCESSION ACT,1956: An Act of the Parliament of India enacted to amend and codify the law relating to intestate or unwilled succession, among Hindus.
INTESTATE SUCCESSION: The distribution of property when a person dies without leaving a valid will.
HINDU SUCCESSION (AMENDMENT) ACT, 2005: By virtue of this Amendment Act, now the daughter is also a coparcener in her own right as a son is vide Section 6 of the Act.
EVOLUTION OF A HINDU DAUGHTER'S RIGHT TO PROPERTY
With the enactment of the Hindu Succession Act,1956 the daughters we granted a few rights on property inheritance. However, there were discriminations related to coparcenary as Section 6 of the Act, then, considered only male members.
The Hindu Succession Act was amended in 2005 and the discrimination regarding coparcenary was removed.
After the 2005 Amendment, the question regarding the date of death of the father began to create confusions. The question was whether the daughter has a right in coparcenary property if the father had died intestate before the amendment?
A two judge Bench of the Supreme Court in the case of Prakash & Ors vs Phulavati & Ors. (2015 (4) RCR (Civil) 952), on 16 October 2015 held that property right of the daughter are prospective in nature i.e. the rights are available only if both the father and the daughter are alive at the time of the commencement of the Amendment.
Later, in February 2018 another two judge Bench of the Supreme Court in the case of Danamma @ Suman Surpur vs Amar (2018 (3) SCC 343) heard the issue regarding the applicability of the act. It was held that It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.
Both the above cited judgements were landmark and conflicting. To settle the confusion a three judge Bench of the Supreme Court in Vineeta Sharma vs Rakesh Sharma held that the Amended Act shall have a retrospective effect and that daughters, like sons, have an equal birthright to inherit joint Hindu family property.
Dr. Paras Diwan,Modern Hindu Law
Daughters have equal birthright to inherit property: Supreme Court”, The Hindu, 11th August 2020