Coparcenary Rights of Daughters: Solving the Obvious Jigsaw

Recently, the Supreme Court of India in Vineeta Sharma v. Rakesh Sharma held that daughters possess coparcenary rights from birth, at par with sons. This judgment resolved the issues of prospective and retrospective application of the 2005 Amendment to Hindu Succession Act. Mahalakshmi Pavani, a Senior Advocate at Supreme Court of India, examines the history of gender justice in property rights for Indian women.

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IN a country entrenched in parochial mindsets, it is obvious to find laws structured specially to cater to the interests of men, who occupy a dominant role in every sphere. A pertinent example of this was the devolution of property, wherein the sons of the Hindu Undivided Family were deemed to be natural heirs' to the ancestral property. 

Prior to the enactment of the Hindu Succession Act of 1956 (Act of 1956), Hindus were governed by shastric and diverse customary laws that varied by regions and castes. Different schools governed succession practices, like  Dayabhaga in  Bengal;  Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The Hindu Succession Act, 1956, was instrumental in consolidating the law on succession and making it uniform across most states. The law, as it stood then, retained the Mitakshara coparcenary property and excluded females.

Females could not inherit ancestral property with the same parity as their male counterparts. Such exclusion was ipso facto discriminatory and oppressive. It negated the fundamental right of equality guaranteed to women by the Constitution of India.  Notably, many states like Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra made sweeping changes to the law to give equal rights to daughters. 

The Amendment of 2005 marked a watershed in the trajectory of the laws inheritance for women in India. It was a step in the direction of practical recognition of equality between the sexes, and elevated the otherwise subservient economic position of women. It also ensured that women could exercise their rights to enjoyment and disposal of property, untrammeled by artificial limitations placed on their ownership by society. 

Rights of Daughters and Trajectory of Personal laws of  Hindus

Under the Mitakshara Law, no female was a member of the coparcenary. The joint family property devolved by survivorship within the coparcenary. This meant that with every birth, or death, of a male in the family the share of every other surviving male would either be diminished or enlarged.  However, it recognized inheritance by succession solely in property owned separately by an individual, male or female.  Females were included as heirs to this kind of individual property.

The Dayabhaga School neither accorded a right by birth nor by survivorship, though a joint family and joint property were recognized.  It recognized only one mode of succession, and the same rules of inheritance applied irrespective of whether the family is divided or undivided and whether the property is ancestral or self-acquired.  Neither sons nor daughters became coparceners at birth, and upon the father's death, they inherited his property as tenants-in-common. The daughters inherited in equal measure with their brothers. 

The Marumakkattayam Law prevailed primarily in Kerala,  wherein the family was joint. A  quintessential household consisted of the mother and her children with joint property rights.  The lineage was traced through the female line since the system of devolution was matrilineal.  Daughters and their children were an integral part of the household and in property ownership.

Progress in women's property rights         

The colonial regimen did not venture into the personal laws of Hindus or of other communities.  Though the latter part of the regimen was marked by prominent social reform movements, it highlighted the need to ameliorate the subservient position of women in the familial and social space. 

Enactments like the   Hindu   Law of Inheritance Act,  1929 which conferred inheritance rights on three female heirs and the  Hindu Women's Right to Property Act (XVIII of ) 1937 brought about revolutionary changes in the  Hindu  Law of all schools. The changes were not only in the law of coparcenary but also in the law of partition, inheritance, and adoption.

However, the widow did not become a coparcener even though she possessed a right akin to a coparcenary interest in the property, and was a member of the joint family.  The widow was entitled only to a limited estate in the property of the deceased, with a right to claim partition. A daughter virtually still had no rights of inheritance. 

The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society. They ensured special care to induce the State to take affirmative action and enact positive steps to give women equal status. Provisions of substantive equality enshrined under Articles 14, 15(2), and (3) and 16 of the Constitution of India not only inhibit discrimination against women but, in appropriate circumstances, provides a  free hand to the State to ensure protective discrimination in their favor. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State. 

Judiciary highlights socio-legal aspects of women property rights 

A woman in her natal family is instinctively modeled to be shipped off once married and her identity is shadowed by that of her husband's. A reverberation of such socialization in Indian families is reflected in personal laws through the differential treatment of women, which is more often than not obtuse to the constitutional goals of social justice.  It demands uniformity, not only in treatment but also in devising a legal mechanism that can cut through the conundrum of personal laws, without tampering religious practices. 

The recent judgment of the Supreme Court in Vineeta Sharma v. Rakesh Sharma, by Justice A.Mishra, set at rest incongruities in the interpretation of the 2005 Amendment to the Act of 1956. The question of coparcenary rights of daughters surfaced in situations where the father was alive on the day the amendment came into force. The revolutionary enactment locates the coparcenary rights of a daughter since her birth. Hence even though the legislation became effective from a prescribed date, it operates in retrospect as it is linked to the date of birth of the daughter. 

The court's reasoning evidences some degree of judicial activism, where it is seen reiterating that the legislation makes no discrimination in rights of sons and daughters as both their property rights stem from their dates of birth. Furthermore, it also held that the statutory fiction of partition, which was created by the proviso to Section 6 of the pre-amendment Act, was only meant to ascertain the share of the deceased coparcener. 

What led to the reference to a larger bench?

The need for reference to the three judge bench arose in the aftermath of contrarian interpretations in Prakash v. Phulavat, Mangammal v. TB Raju, and Danamma@Suman Surpur v. Amar. 

The Division Bench in Prakash held that Section 6 was not retrospective in operation and that it applied when both coparcener and his daughter were alive on the day the amendment of 2005 was effectuated, i.e. on 09.09.2005. It opined that, there was neither any express provision for giving retrospective effect nor necessary intendment was made apparent from the scheme of the concerned enactment. 

An identical line of thought was found in Mangammal. On the other hand, in Danamma the   Court held that the amended provisions of   Section   6   conferred full rights upon the daughter as a coparcener. Any coparcener, including a daughter, could claim a partition in the coparcenary property. However, the court held for Section 6 to have a prospective application. The daughter was treated as a coparcener under the Amendment Act 2005, but not on account of the daughter's birth prior to the amendment. Both judgments stand overruled (Danamma being overruled partially) by the three judge bench in its recent judgment. 

The issue has been much abated by the legal academia and even the Law Commission of India, in its 174th, 204th, and 208th Reports. What needs to be understood is that the Hindu coparcenary has several essential characteristics, which mean that the interest of a deceased member survives upon his death and merges into the coparcenary property. 

A necessary corollary is that if the father, or any other coparcener, has passed away before the Amendment Act of 2005 then the interest would have already survived and merged into the coparcenary property. Hence, per the interpretation of Section 6 the daughter succeeds in the interest of the coparcenary property. 

Underlining gender justice in personal laws

In a nutshell, the scheme of Section 6 following the Amendment Act of 2005 is futuristic and forward-looking. Given the socio-economic circumstances of women, it has to be interpreted in a manner such that its relevance is not diluted.  A pertinent and distinguishing feature is that now the rights of a coparcener have been enlarged. 

It must be appraised that the Act too will run its course in due time. Containing a woman within the four corners of personal laws has often garnered the intervention of the Apex Court. The modalities of various legislations sanctifying personal laws in India have often commanded immediate rationalization and reformation to iron out any interpretational snarls. 

This has further fueled the demand for the oft politically vexed Uniform Civil Code. The courts are inclined towards adoption of a Uniform Civil Code, which is met by equal repulsion from many opposing groups. Perhaps what it demands is a balancing act between the eggshell fragility of personal laws and constitutional ideals. This needs to be approached with utmost caution. 

Though religion governs the inner conscience and outer conduct of individuals, the key takeaway is the extent to which religious practices dictate legislation. This requires deliberation to rationalise religion's impact upon constitutional rights, without which traversing the contours of gender justice remains legal fiction. It is one positive step towards achieving gender justice. 

(Mahalakshmi Pavani is a Senior Advocate at the Supreme Court of India. She acknowledges the contribution of Advocate Sumedha Sen to the article. Views expressed are personal.)