By Farhan Khan
“A daughter always remains a loving daughter. A son is a son only till the eve of his marriage. A daughter is a daughter throughout her life,” Justice Arun Mishra.
India has always been a patriarchal society where females have been unfairly discriminated against on various grounds. A shadow of such discrimination is reflected in Hindu Succession Act, 1956, where women weren't entitled to seek the coparcenary rights in the undivided family under Mitakshra coparcenary. This essay will basically deal with the rights of female descendants as a coparcener. Prior to 2005, the system of coparcenary was envisaged for exclusively male lineage. I'm 2005 the Hindu Succession Act got amended, eradicating gender-based discrimination and the women got entitled to have a coparcenary right. Now a daughter is capable to seek the coparcenary rights over ancestral property and demand the partition of the same.
Today we are living in a country where everybody has equal rights, opportunities, duties except some privileges to the highest authorities. Having the largest written constitution in the world, we are bestowed with various rights i.e. fundamental rights, constitutional rights and legal rights. To be equal in the eyes of law, having equal rights of opportunities and equalities are provided in the constitution as our fundamental rights under article 14-18, collectively called the right to equality. Despite these equalities under fundamental rights, in the Preamble of the constitution, we also have the concept of equality of status and opportunity irrespective of any gender, race, caste etc. So if in the current scenario anybody is being deprived of equality is quite abnormal for the nation. It is very common that Indian society is predominantly patriarchal in nature and males are preferential over females. Moreover, due to some provisions of personal laws women are somewhere unable to get equal status in various opportunities, the succession of coparcenary property listed in this domain too. According to Hindu law, the very first document pertaining to the succession of ancestor’s property was the Hindu Succession Act 1956. Primarily this law was codified only that the male lineal descendant of a Hindu undivided family will be entitled to acquire the ancestral property. Women were deprived of this right because of this ideology that the female child is not a lifetime member of the family; rather, one day she will get married and become a part of another’s family. Hence a female child should not be presumed as a legal coparcener. Moreover, the Act says that the woman had absolute possession over their own property but was not entitled to seek Coparcenary rights over ancestral property. Somehow this provision of the Act made it outrightly prejudiced towards the women because of their gender identity which is absolutely against their fundamental rights mentioned under article 14 of the Indian Constitution.
Aiming to efface this derogatory provision against women’s rights, lawmakers of the country realized the necessity to frame a gender-neutral law. An act with the provision of giving equal rights to the women over the ancestral property. Because of this discrimination against women the parliament of India has brought a massive change in section 6 of the Hindu Succession Act 1956. Ultimately The Hindu Succession (Amendment) Act 2005 was enacted on September9, 2005. This amendment in the Act enabled the women to claim coparcenary rights over ancestral property unlike the sons and made them legal joint heirs of the family. So the section 6 of the Hindu Succession (Amendment) Act 2005, proposed that “on and from the enactment of the Amendment Act, 2005, the female descendants of a coparcener shall have a factum right on the coparcenary property by birth, unlike the same way it is available for the male descendants in the Act. The daughter also shall have the same responsibilities as the son does. This concept of having right since birth is known as “unobstructed heritage”.
Meaning of Coparceners and Coparcenary property
Hindu joint family system was divided into two schools viz. Mitakshara school and Dayabhaga school. In this joint family, the daughters were not entitled to have any right over ancestral property. On the contrary, once when the sons take birth they are entitled to birth rights over family property. So basically these sons who acquired a birth right over ancestral property are termed as coparceners. In the context of the Hindu undivided family, a Coparcener is a person who is entitled to seek their share in the property of their ancestors. Moreover, the coparcener is different from the members of the family as the members have the infinite chain whereas the coparcener is linked up to only three degrees i.e. son, grandson and great-grandson. Prior to this amendment in 2005 only sons, grandsons and great-grandsons were considered to be coparceners. But the amendment in Section 6 of the Act gave recognition to daughters also as a coparcener, unlike the sons.
Coparcenary property is an asset that is inherited by a Hindu child from his/her ancestral property i.e. from father’s, grandfather’s or great grandfather's property. The term coparcener refers to the individual who has the inheritance right over the ancestral property. Before 2005 the women were not entitled to seek coparcenary rights therefore could not possess or claim the inheritance of the property of their father. 
Though since the amendment in Section 6 of the Hindu Succession Act 1956 was made by parliament in 2005, it has been the law that the women successors have an equal part of their father’s property. But the inheritance status of the women over their ancestral property after his death was not explicit enough as concerning the day of enforceability of the amended act. In the case of Prakash v. Phoolwati two judges bench headed by Justice A.K. Goel pronounced that the advantage of the 2005 amendment in Hindu Succession Act could be avail merely by the living daughters of the alive coparceners as on September 9, 2005 (the date of enactment of amended act). In this case the Supreme Court insisted on the prospective nature of section 6 and stated that it would apply only if the coparcener and daughter were both alive on September 9, 2005.
In the case of Danamma v. Amar the Supreme Court had reached a decision that section 6 of the Act would apply retrospectively. In this case what happened? The father, who had two daughters, two sons and a wife, left this world in 2001. While hearing this case the Apex Court held that “it is the quite factum of birth in a coparcenary matter that creates the concept of coparcenary, hence the sons and daughters have the coparceners rights by birth”. And consequently, the court held that the daughters are also coparceners and are entitled to have an equal share in the property as the sons have irrespective of whether the father was alive when the amended section 6 of the Hindu Succession Act came into force I.e. 9th Sept 2005.
Lately in the case of Vineeta Sharma v. Ramesh Sharma Hon’ble Supreme Court gave a 122 pages judgment on raising the issue that women have been subjected to historical discrimination and stated as it comes to being a coparcener the women must be given par right irrespective of prospective or retrospective applicability of substituted section of amended Act. The court focuses on ensuring the right to equality, held that the female child coparcener has equal coparcenary rights in the Hindu Undivided Family (HUF) assets by birth irrespective of this fact whether the father was alive on the day when substituted section 6 of Hindu Succession Act came into force. In this three judges bench consisting of Justice Abdul Najeer, Justice M.R. Shah headed by Justice Arun Mishra reached a consensus that the revised section 6 of the Hindu Succession Act provides to the daughter's equal coparcenary rights along with its liabilities, rights par to the son coparceners. Coparceners could avail this right by their birth but wouldn’t be enforceable till the date of their father’s death. In this case, Hon’ble Court settled the scope and applicability of section 6 of this Act. In this judgment the Hon’ble Court basically pointed out two facts :
1. Coparcenary rights are bestowed upon the daughters by their births.
2. It is not mandatory that the father should be alive on the day of enforcement of substituted section 6 of Hindu Succession (Amendment) Act 2005.
The enactment of the Hindu Succession Act in 1956 was based upon the survivorship rule that means only after the demise of common ancestors the property will inherit to the survivors. And the Coparcenary rights were bestowed with only male lineal descendants coming within the purview of three-degree coparceners. The reason for excluding women from this right was only that someday she will get married and become a part of another’s family. This prejudiced perspective towards the gender of women and infringement of her fundamental rights enshrined under Article 14 led to the amendment of the Act in 2005. Eventually, after around four decades of pondering over the issue of whether women should be granted Coparcenary rights or not, The Hindu Succession ( Amendment) Act 2005 was passed by the parliament. This amendment amended section 6 of the Act ensuring equal coparcenary rights to the women over ancestral property. This amendment added certain provisions in section 6 (1), are as follows:
It established the provision of the daughter’s Coparcenary right as par to the sons over ancestral property.
In case a common ancestor dies the property shall be allotted to the daughters as it is given to the male child.
It annulled the succession based on survivorship rule and in contrast acknowledged the rule of Testamentary Succession and Intestate Succession.
In a Hindu undivided family, it enabled the daughters to demand a partition of property as the sons do.
A daughter with her own conscience can disembarrass her share of coparcenary property.
In case if the partition of property occurs instantly before a female coparcener dies then the children of such coparcener shall be allotted the coparcenary property.
However, it was confirmed by the court that the female child even born before the enactment date could not claim any coparcenary rights over the property matters that occurred prior to 20 December 2004 ( bill introduced in Rajya Sabha).
- Supreme Court Clears The Air On Coparcenary Rights Of Daughters Under The Hindu Succession (Amendment) Act, 2005- ( Aug 7, 2021, 8: 20 AM)- https://www.mondaq.com/india/trials-appeals-compensation/977352/supreme-court-clears-the-air-on-coparcenary-rights-of-daughters-under-the-hindu-succession-amendment-act-2005 . - Hindu Succession Act, 1956. - Prakash &ors. v. Phulavati &ors. (2015) SSC Online SC 1114. - Danamma v. Amar Singh (2018) 3 SSC 343. - Vineeta Sharma v. Rakesh Sharma (2020) SSC Online SC 641. - Daughters have an equal birthright to inherit property: Supreme Court- ( Aug 8, 2021, 7:30 pm)- https://www.thehindu.com/news/national/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/article32325891.ece .
Author: Farhan Khan
Year: 1st year
University: Aligarh Muslim University Aligarh