Supreme Court Rules that Daughters have Coparcenary Rights by Birth

The Supreme Court has recently ruled on the succession rights afforded to daughters (placing them as coparceners at par with sons irrespective of the time of the father’s demise), thereby settling a contentious issue under the Hindu Succession Act, 1956.

Introduction: Devolution of Ancestral Property of Hindus

i)  Under Hindu law, Hindus have testamentary freedom in relation to self-acquired property i.e. the ability to leave their assets to persons of their choosing under a will. However, any ancestral property devolves to ‘coparceners’ i.e. those members of the joint Hindu family forming part of the coparcenary[1]. Coparceners have an equal right, by birth, to coparcenary property and can initiate a claim for partition of the coparcenary property.

ii)  Prior to 2005, only the male descendants of the deceased were considered coparceners. The Hindu Succession Act, 2005 (‘2005 Act’) amended the erstwhile Hindu Succession Act, 1956 (‘1956 Act’), to designate daughters as coparceners in the same manner as a son, and with the same rights and liabilities. These amendments took effect from the date of commencement of the 2005 Act i.e. September 9, 2005.

iii)  Since then, there have been multiple judgments, several conflicting, in relation to issues of applicability of the 2005 Act, with one such issue on applicability settled by a three judge bench of the Supreme Court in Vineeta Sharma v. Rakesh Sharma, which we have examined below.

iv)  The two primary questions dealt with were whether a daughter would be entitled to coparcenary rights (a) irrespective of whether she was born prior to the effective date of the 2005 Act and (b) irrespective of whether her father was alive as of the effective date of the 2005 Act.

Daughter’s Coparcenary is a “Status”

i)   As regards the first question, the key argument was that the amended provision allowing daughters to be considered “coparceners by birth” was introduced with effect from September 9, 2005 and, therefore, could not be considered to cover daughters born prior to such date.

ii)   However, the Supreme Court held that the amended provision confers a “character” or “status” on daughters, which applies retroactively and results in the daughter being considered a coparcener irrespective of whether she was born before or after the 2005 Act.

iii)   On this point, the Supreme Court differed from its ruling in Prakash v. Phulavati (also partly overruling its judgement in Danamma v. Amar to the extent inconsistent), observing that the Court’s attention in that instance had not been drawn to the manner in which a coparcenary is created, with the rights flowing from birth.

Timing of Father’s Death Irrelevant

i)   As regards the second question, the key argument was that if the father coparcener had died prior to the effective date of the 2005 Act, his interest would have already merged with that of the other male coparceners, and accordingly, there would be no coparcenary interest for the daughter to inherit.

ii)   Dismissing the above contention, the Supreme Court drew a distinction between ‘obstructed heritage’ i.e. where the right accrues owing to the death of another party (as argued above) and inheritance by way of birth i.e. by ‘unobstructed heritage’ (as under the 2005 Act).

iii)  The Supreme Court noted that a daughter enjoys unobstructed heritage pursuant to the 2005 Act, and, accordingly, a daughter would inherit her share irrespective of the timing of the father coparcener’s death.

Savings Provision on Partitions

i)   Additionally, the Supreme Court also dealt with partitions which may have taken place prior to December 20, 2004, which are protected by a savings provision in the 2005 Act.

ii)  In relation to such partitions, the Supreme Court held that they would need to be effected by a decree of a Court so as to ensure that daughters were not denied their due benefits on account of parties claiming sham partitions. It also held that a plea of oral partition cannot be accepted other than in exceptional cases, where supported by public documents and being evidenced in the same manner as if it had been affected by a decree of a Court.

Conclusion

i)   The applicability of the 2005 Act has been challenged multiple times, and by pronouncing this progressive ruling, the Supreme Court has once again affirmed the rights of women as coparceners in ancestral property. From a practical perspective, it means that women testators should factor in their share in HUF interests when they draw up their wills (although HUF property itself is not bequeathable prior to partition, but the interest in an HUF is bequeathable).

ii)  Further, where family settlement arrangements are being entered into, families should be mindful of the status of women members as coparceners possessing an equal right to the coparcenary property, irrespective of their time of birth or whether their father was alive on the date of the 2005 Act.

[1] Under customary Hindu law, a joint Hindu family consists of all persons lineally descended from a common ancestor together with their wives and unmarried daughters. A coparcenary exists as a narrower grouping within such broader joint Hindu family structure, and consists of an ancestor and three lineal descendants. For example, in respect of an ancestor ‘A‘ and his child ‘B’, grandchild ‘C’, great-grandchild ‘D’, and great-great-grandchild ‘E’, the coparcenary would include A,B ,C, and D (i.e. A and his three lineal descendants) with E being excluded as a coparcenary is confined to three lineal descendants.

Date: August 25, 2020