Once A Daughter, Always A Daughter [Legal Perspective] By CA Navjot Singh


SC rules in favor of women’s equal right to parental property throughout life.

Compendium

  • A batch of appeals was heard by a three-judge bench headed Justice Arun Mishra, which raised an important legal issue whether "the Hindu Succession (Amendment) which gave equal rights to daughters in ancestral property, has a retrospective effect."

  • Settling the disputed question of law, the top court set aside a clutch of previous decisions that, "a daughter would have the coparcenary right only if both the father and the daughter were alive as on September 9, 2005, when the amendment was notified."

  • The court had earlier given two contradictory judgments in two cases — Prakash vs. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur vs. Amar, (2018) 3 SCC 343.

  • In Prakash V. Phulavati (2015), a bench comprising Justices Anil R. Dave and A.K. Goel had held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005, irrespective of when such daughters are born. It was held that, is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.

  • On the other hand, in the case of Danamma @ Suman Surpur vs. Amar (2018), the bench comprising Justices A K Sikri and Ashok Bhushan had 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.

  • This judgment realizes the true intent and spirit of the 2005 amendment, which was to bring parity in the rights of daughters and sons. It's a giant leap towards equality and upliftment of women's rights.

  • Gender justice is far from reality in India, with several other inequalities of caste, religion, and class reinforcing the secondary status of women. But the judgment is in sync with a larger churn in Indian life that has seen women extract similar concessions from families and religions that involve citizens and communities using constitutional promises to push institutions towards change.

  • This ruling is a seal on a substantive change in the Hindu undivided family.

1.  What it is all about?

1.1 The Mitakshara school* (See the last Page) of Hindu law codified as the Hindu Succession Act, 1956 governed succession and inheritance of property but only recognized males as legal heirs.

1.2 The law applied to everyone who is not a Muslim, Christian, Parsi, or Jew by religion. Buddhists, Sikhs, Jains, and followers of Arya Samaj, Brahmo Samaj are also considered Hindus for the purposes of this law.

1.3 In a Hindu Undivided Family, several legal heirs through generations can exist jointly.

1.4 Traditionally, only male descendants of a common ancestor along with their mothers, wives, and unmarried daughters are considered a joint Hindu family. The legal heirs hold the family property jointly.

1.5 Women were recognized as coparceners or joint legal heirs for partition arising from 2005.

1.6 Section 6 of the Act was amended that year to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”. The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.

1.7 The law applies to ancestral property and to intestate succession in personal property, where succession happens as per law and not through a will.

1.8 The 174th Law Commission Report had also recommended this reform in Hindu succession law.

1.9 Even before the 2005 amendment, Andhra Pradesh, Karnataka, Maharashtra, and Tamil Nadu had made this change in the law, and Kerala had abolished the Hindu Joint Family System in 1975.

2.  Journey of Antagonism

2.1 The matter started with a married daughter, Vineeta Sharma, asking for her share as a coparcener before the Delhi high court.

2.2 Thereafter, a Bunch of appeals was heard by a three-judge bench as one of them arising out of a judgment delivered by Delhi High Court which had also granted a certificate to appeal[1].

2.3 The High Court has noticed that there is a conflict of opinion between Prakash vs. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur vs. Amar, (2018) 3 SCC 343 with regard to the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005.

2.4 However, the High Court followed the judgment in Prakash V. Phulavati and held, in facts of this case, that, the amendments of 2005 do not benefit the plaintiff as her father passed away on 11th December 1999.

Section 6Now, Section 6 provides that, on and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,(a) By birth become a coparcener in her own right the same manner as the son(b) Have 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, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.The proviso to Section 6 clarifies that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004.


2.5 In Prakash V. Phulavati (2015)

  • The Supreme Court bench comprising Justices Anil R. Dave and A.K. Goel had held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005, irrespective of when such daughters are born.

  • It was held that there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.

  • This position was reiterated by the bench of Justices R.K. Agrawal and A.M. Sapre in Mangammal vs. T.B. Raju (2018).

2.6 In the case of Danamma @ Suman Surpur vs. Amar (2018)

  • The bench comprising Justices A.K. Sikri and Ashok Bhushan had 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

  • "Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son.

  • It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth.

  • The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. (The section uses the words in the same manner as the son)

  • It should, therefore, be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth.

  • It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcenary become coparceners by virtue of birth. The devolution of coparcenary property is the later stage of and a consequence of the death of a coparcener.

  • The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized.” it was observed in the said judgment.

3.  Apex Court’s Final Observation

3.1
The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the same rights and liabilities.

3.2 The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December 2004.

3.3 Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

3.4 The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of the coparcenary.

3.5 The fiction was only for the purpose of ascertaining the share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female.

3.6 The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

3.7 In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutorily recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.

3.8 However, in exceptional cases where the plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.

3.9 A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

3.10 Retroactive vs Prospective:

  • When the provision was amended, it granted coparcenary rights on the daughter making her a coparcener "in her own right" in the same way as the son and this right took effect by virtue of birth. Explaining the same, the judgment elaborates,

“Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener"

  • While a statute with prospective effect operates from the date of its enactment, legislation with the retrospective effect would work backward and also undo the impairment caused prior to its coming into force.

  • This amendment operates in futuro but by virtue of its retroactive operation, it confers rights on daughters from the time of their birth even if the birth took place prior to the amendment, the Court explains.

4.  History of the reforms of Hindu law and Various of the dimension of the Judgement[2]

4.1 This SC decision is not an intrepid or path-breaking decision but a logical extension of the changes that have come so far.

4.2 In his Essays in Classical and Modern Hindu Law, Duncan Derrett commends that the best studies of property as a concept are by ancient Indians and that they are largely unknown because they are in manuscripts.

4.3 A text that he chooses from says that property is not an objective entity sui generis. “It is ‘a settled impression’ dependent upon the consciousness of acquisition, or rather of having acquired, which in turn implies understanding of the permitted methods of acquisition.”

4.4 If we are firmly impressed that women have no right to property, the personal laws of the property will naturally be what they are until they are brought in line with the constitution.

4.5 Coparcenary property is a concept that is essentially patriarchal in nature and the Hindu Succession Act has taken its time to do away with it. The process began in 1956 but has reached a logical conclusion only now.

4.6 The Hindu Succession Act, 1956, was the most crucial of reforms since it had to do with property, which a key to gender equality and empowerment.

4.7 The original draft of this Act attempted to scrap the concept of coparcenary property. This was vehemently resisted.

4.8 In the cited case, it was argued that the 2005 amendment recognizing women as coparceners can only be prospective – that unless the father was alive on the date of the enforcement of the amendment Act, there could be no recognition of the daughter’s right; that the amendment was not intended to unsettle matters; that if a preliminary decree was passed, all that was left to be done was to demarcate shares by metes and bounds and hence it cannot be altered.

4.9 The crux of these arguments was that the amendment operated prospectively and not retroactively.

4.10 Until the 2005 amendment, only the male members of a Hindu family had coparcenary rights. And coparcenary property is a right that comes with birth. Now, female members have the same right. It is quite simple. It is a right recognized from the time the daughter is born just as if she were a son.

4.11 This status, therefore, operates from the time she is born. “Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage.

4.12 ‘Unobstructed heritage’ Section 6 of the Hindu Succession Act gives an “unobstructed heritage” (i.e. a right by birth) to the daughter, noting that a coparcener’s father need not be alive on 9 September 2005.

“Coparcener’s right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage,” the court cited.

4.13 However, it clarified that the daughter born before 9 September 2005 can only claim her rights with effect from the date of the amendment, and any transaction relating to the property before 20 December 2004, when the Bill was tabled before Rajya Sabha, will not be disturbed. This is according to the amended Section 6(1) of the Act.

4.14 The Supreme Court said the injustice of inequality “has now been done away with by amending the provisions [of the Hindu Succession Act] in consonance with the spirit of the constitution.”

4.15 Any transaction that is genuine and has become final is saved and is not vulnerable to attack and cannot be re-opened. But sham transactions which are bound to be trotted up shall not stop the coparcener daughter from getting her share.

5.  Now, Oral partition not acceptable?

5.1
Before the amendment in 2005, an oral partition was permissible, with the burden of proof on the person who claims there was a verbal division.

5.2 But the amended Section 6 (5) of the Hindu Succession Act says a “partition” can be affected by any registered deed or a court decree.

5.3 It was argued in the top court that the need for a registered partition deed was not mandatory. But the court noted that section 6 intends to ensure daughters are not deprived of their rights of obtaining their share on becoming a coparcener.

5.4 “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 an unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under section 6(5),” it observed.

5.5 The court, therefore, ruled that a plea of oral partition cannot be legally accepted.

5.6 However, it may be accepted in exceptional circumstances if it is supported by public documents.

6.  ‘Statutory fiction of partition’

6.1 The earlier section 6 also created what is called a “statutory fiction of partition” — a complex mechanism to ascertain the rights of a man’s surviving family members if he died leaving behind a female relative in Class I of the Schedule (for example, a daughter, widow, mother, etc).

6.2 In such a case, the earlier law said property share had to be calculated by imagining that a partition took place immediately before a man’s death.

6.3 This was done because women did not have a share in the coparcenary property but were entitled to a share of the interest of the dead coparcener (for example, a father or husband) in the property.

6.4 The court has now held that this “statutory fiction of partition” did not bring about an actual partition. Irrespective of any such statutory fiction of partition having taken place before the amendment, the new provision will have to be implemented in any pending proceedings or appeal.

7.  Pending cases to be decided in 6 months

7.1 The Supreme Court also noted that several suits and appeals across the country were pending before high courts and subordinate courts because it was looking at the issue.

“The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by section 6,” the court noted.

7.2 It also requested these courts to decide all pending matters, as far as possible, within six months.

Women’s right to property should be central to India’s land reforms (CNBC Report)

  • From the Economic Survey 2017/18, the Government of India highlighted a growing trend of feminization of agricultural labor. Among other reasons, more men migrate to cities in search of higher incomes, therefore an increasing number of women are in multiple agricultural roles like cultivators, entrepreneurs, and laborers. Deeply held societal, legal, and institutional biases limit women’s ability to inherit assets and property. Women constitute over 60 percent of the agricultural labor force of the country yet hold only 13.96 percent of agricultural land as per the Agricultural Census 2015/16.

  • When women don’t have a legal claim to the land they cultivate, they lack control over resources, the production process, and income. There is a range of benefits of increasing women’s ownership; women have a higher propensity for using income for the benefit of the household. Further, ownership of property brings a sense of security, self-confidence, increases bargaining power and increases public participation.

  • Economically dependent women are subject to violence in natal and marital families. Research suggests that the probability of propertied women being physically abused is reduced from 49 percent to 7 percent due to an increase in her bargaining power.

  • Another form of women’s exclusion is that states recognize only landholders as farmers. Precluding women from coverage under the definition of “farmer” withholds their access to central, state government benefits like Kisan Credit Cards, input subsidies, and crop insurance schemes. Systemic exclusion and a limiting definition curtail women farmers’ access to inputs from existing schemes that will increase their productivity and agricultural output.

  • Legally, the Hindu Succession Act recognizes a women’s right to a share in the family property, but the revenue codes of many states don’t provide equal treatment for men and women’s rights to agricultural land. This unequal treatment is evidenced by states like Punjab, Haryana, Himachal Pradesh, and Jammu and Kashmir, by not allowing daughters and sisters to inherit agricultural land. Delhi gives inheritance rights to widows over agricultural land, but not daughters. Such discriminatory provisions are observed in many revenue codes across states. As agricultural land is a state subject, the revenue codes hold primacy over the Hindu Succession Act when it comes to succession. This has been held by the Allahabad High Court in a judgment in 2015.

  • Gender bias affects local institutions. For example, the patwari visits the plot to determine eligible successors upon the death of the landowner and reports to the tehsildar to register mutation. We have observed that due to their biases, patwaris and tehsildars usually neglect women's successors’ claims, even if they are legally valid under the state’s revenue code. Further, mutating land to a woman’s name requires multiple journeys to the tehsildar’s office and is a long, bureaucratic process.

  • Additionally, as suggested in the Women Farmers’ Entitlements Bill, 2011—women in agriculture should be issued a Woman Farmer Certificatewhich can be used as evidence in administrative and judicial proceedings and would allow women cultivators to access government benefits reserved for “farmers” including input subsidies and cash benefits. This will decrease production costs and increase income potential for women farmers.

  • Secondly, the Supreme Court should make efforts to remove discriminatory laws under the individual state revenue codes and bring them inconsistency with the Hindu Succession Amendment Act, 2005, for countrywide applicability. Even though the Allahabad High Court gave primacy to the state revenue codes in 2015, the clash between legislation under the concurrent list (succession rights) and one under the state list (agricultural land) is a legally complex one that should be reviewed by the Supreme Court. Maharashtra has taken steps to alleviate bias by allowing widows of farmers who commit suicide to inherit agricultural land, demonstrating that progressive change is possible.

  • Thirdly, land record updation schemes need to have in-built gender justice components. For example, the recently launched Swamitva Scheme by the Ministry of Panchayati Raj to map inhabited land ownership in rural India should incorporate gender justice by requiring joint property registration between husband and wife.

Appendix*Schools of Hindu Laws

Mitakshara Law School

Dayabhaga Law School

The term Mitakshara is derived from the name of a commentary written by Vijnaneswara, on the Yajnavalkya Smriti.

The term Dayabhaga is derived from a similarly named text written by Jimutavahana.

It is observed in all parts of India and subdivided into the Benares, the Mithila, Maharashtra and the Dravida schools.

It is observed in Bengal and Assam.

A son, by birth, acquires an interest in the ancestral property of the joint family.

A son has no automatic ownership right by birth but acquires it on the death of his father.

All the members enjoy coparcenary rights during the father’s lifetime.

Sons do not enjoy coparcenary rights when the father is alive.

A coparcener’s share is not defined and cannot be disposed of.

The share of each coparcener is defined and can be disposed of.

wife cannot demand partition but has the right to a share in any partition between her husband and her sons.

Here, the same right does not exist for the women because the sons cannot demand partition as the father is the absolute owner.


[1]
The High Court grants the certificate to make appeals to the Supreme Court.

[2] Excerpts contains the views of Hon’ble Justice Prabha Sridevan

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