DAUGHTERS' INHERITANCE RIGHTS: A MAJOR BREAKTHROUGH

by Ridhima Sharma


HISTORY OF WOMEN INTERESTS' DEPRIVATION

To embark on, Vedic period can be regarded as “Swarna Yuga” or golden age for the status and rights of women. The social or familial status of daughter was fairly satisfactory in the Rigveda period. Ordinarily, the daughters didn’t have any right to hold, acquire or dispose of property. But the daughter living in her father’s house throughout her life got a share of his property[1]. But she couldn’t claim any share with her brothers, for it is clearly laid down in the Rigveda that “ a son born of baby doesn’t transfer wealth to sister.” Married daughter living with their husbands could inherit from their father only when they had no brother[2]. Thus, the general opinion of hindu society at that time was that sisters got the share in the patrimony if they hadn’t brothers.

Afterwards the Vedic period, under the Smriti period, considerable change of popular feeling regarding the proprietary position of woman was reflected and Manu, Yajnavalkaya, Brihaspati, Narada and other Smriti writers admitted certain female heirs in the order of succession[3].

Moving forward, under Mitakshara school, which applies on the India except the Bengal, after woman's death, it devolved firstly on the unmarried daughter and then on married daughter and then daughter’s daughter followed by daughter’s son. Furthermore, the Privy council also expressed that a daughter should be subject to limitations and restrictions of same description as was applicable in the case of a hindu widow in the estate inherited from her husband[4].


A. HINDU LAW OF INHERITANCE (AMENDMENT) ACT, 1929

The daughter’s position under inheritance was degraded to much extent as she wasn’t considered as equal holder of property rights as her brothers according to Mitakshara school. So, in lieu of the same, there are some enactments proceeded to enlighten the daughters regarding their interests and Act, 1929 was the foremost in the acknowledgment of their rights. Though, the act was in the direction of extending daughter’s rights but the act only emphasised that certain degrees of remoter male heirs should be postponed in favours of nearer degrees of female heirs and nothing more[5]. Further, the Act II of 1929 was limited in sense that it regulated succession only in case of separate property of hindu male dying intestate.


B. THE HINDU WOMEN’S RIGHT TO PROPERTY ACT, 1937

Moving ahead, by this act's enactment and its amendment, a predeceased son's widow was placed before the daughter in the order of succession; but she wasn’t liable to pay any amount to anybody out of estate which devolved on her. Thus, the maiden daughter couldn’t enforce her claim to maintenance or her marriage expenses from predeceased son’s widow[6]. And widow might turn the daughter out into the street, since her rights were not protected in Act or its amendments[7]. Therefore, resultantly though these amendments made timely to restructure the daughters' entitlements, but still the situation hasn’t been revolutionized to guard the interests of daughters and regarding this, some major evolutionary changes brought into picture after independence.

MOVE TOWARDS THE PRAGMATIC APPROACH:

  • HINDU SUCCESSION ACT, 1956

After the independence, the retention of Mitakshara coparcenary has been a constitutional discrimination against daughters. But when the parliament enacted the Act, 1956, there are some major changes introduced by this act which has brought the status of women to new spirits to some extent. Some of the noteworthy and influential changes are prescribed as:

(1) It introduced the principle of concurrent succession under which heirs of different categories could succeed to the property of deceased at the same time.

(2) It removed distinction between son and daughter in the inheritance rights and allotment of shares and property they could acquire.

(3) Daughter could inherit the interest of her father in Mitakshara coparcenary property.

(4) Property inherited by her become her absolute property.

But the major loophole still exists in the Act, 1956 which is related to the survivorship rule of Mitakshara coparcenary according to which the property devolves upon the son in general under the inherited property[8].

  • HINDU SUCCESSION AMENDMENT ACT, 2005

This act is of the utmost importance related to daughter’s rights which has completely revamped the whole structure of the daughter’s inheritance rights whose prime provisions are described as:

(1) The daughter of a coparcener by birth becomes a coparcener in the same manner as the son.

(2) Daughter has same rights in the coparcenary property as she would have been a son.

(3) Daughter shall be subject to same liability in the coparcenary 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.

(4) The daughter is allotted the same share as is allotted to a son.

(5) The survivorship rule[9] has been abrogated and now the property will devolves through the testamentary[10] and intestate[11] succession, in case of death of coparcener after 9.9.2005.

However, the above provisions shall not affect or invalidate any disposition or alienation including partition or testamentary disposition of property which had taken place before 20th Dec; 2004[12]. Therefore, the Act, 2005 is prospective in nature as much as partition prior to amendment can’t be reopened[13]. Thus, resultantly the both Acts have played the pivotal role in the blossoming the future of the daughters but still the prime focused issue related to the retrospective effect of act remained the most debatable issue which has now been resolved by the supreme court's verdict which has favoured the rights of the daughters.

JUDICIAL DICTUM : RESOLUTION OF CONTROVERSY

The main issue in controversy was whether it is necessary that father of daughter should be living as on the date of amendment for the daughter to claim the benefit of 2005 amendment[14]!

The whole judiciary settlement revolved around the three major pronouncements which includes the Prakash V. Phulwati (2015) case[15], Danamma V. Amar (2018) case[16] and finally Vineeta Sharma V. Rakesh Sharma (2020) case[17] which has changed the model of inheritance rights in toto. It has indeed proved to be the boon for the indigent daughters regarding their property rights.

Firstly and foremostly, under Prakash V. Phulvati[18], the court bench[19] held that rights under amendment are applicable to living daughters of living coparceners as on the 9.9.2005[20], irrespective of when such daughters are born.

Secondly, under the Danamma V. Amar, court[21] relying upon Ganduri V. Chakiri's case[22] observed that though the father died before the Act, 2005 came into force, leaving behind two daughters, son and a widow, but the daughter would get its equal share as son.

Thirdly, under the Vineeta Sharma V. Rakesh Sharma, the bench[23] observed that, “Coparcener right is by birth. Thus, it is not at all necessary that the father of daughter should be living as on the date of amendment, as she has not been conferred the rights of a coparcener by obstructed heritage[24]. According to the Mitakshara coparcenary hindu law, as administered which is recognised in section 6(1)[25], it is not necessary that there should be a living, coparcener father as on the date of amendment to whom daughter would succeed. In case a living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession.” Further, the court held that, “ It is not necessary to form a coparcenary, that a predecessor coparcener should be alive; relevant is birth with degrees of coparcenary to which it extends and survivorship is the mode of succession, not that of formation of coparcenary. Hence, we find ourselves unable to agree with the concept of living coparcener laid down in Prakash's case”. Moreover, on the issue of partition, the court is of the opinion that mere severance of status by way of filing a suit doesn’t bring about the partition and till the date of final decree; change in law and changes due to subsequent event can be taken into consideration. However, the court also observed that, “ In exceptional cases where plea of oral petition is supported by public documents and partition is fully evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence can’t be accepted and to be rejected outrightly.”


CONCLUDING REMARKS

All in all, the apex court through its verdict, has righteously upheld the rights of the women by overruling all the previous decisions. Now, the daughters are not supposed to be the tool of the evil minds to deprive them of their rights and treated to be the disadvantaged strata. They will be entitling their interests and shares equivocally which has established the right of equality[26] to greater extent and the daughters will also be recognised as the equal share holder of the proprietary rights which has ended the exploitation of their rights and has uplift their image in this developing nation.

[1] Rigveda II, 17 [2] Rigveda III, 31-32 [3] Shodganga.Inflibnet.ac.in [4] Chotey Lall V. Chunno Lall and Others (1878) ILR Cal 774 (P.C.) [5] Shodhganga.Inflibnet.ac.in [6] Indian Council Act No. XI of 1938 [7] Calcutta Weekly Notes, XC IX [8] Section 6 of the Act,1956 states the provision regarding the devolution of property. [9] Survivorship rule- The property after the death of common ancestor devolves upon by the survivors of the died coparcener. [10] Testamentary succession – when the owner of property divide the assets through the will. [11] Intestate succession- When the coparcener dies without dividing the property through will. [12] Exception of section 6 of Hindu Succession Amendment Act, 2005. [13] Patnaik V. Sarat Chandra Patnaik AIR 2008 Ori 133 (D.B.) [14] Section 6 of Hindu Succession Amendment Act, 2005 [15] Civil Appeal No. 7217/2013 [16] Danamma @ Suman Surpur V. Amar Civil Appeal No. 188-189/2018 [17] Vineeta Sharma V. Rakesh Sharma and Ors. Civil Appeal Diary No. 32601/2018 [18] Prakash and Ors. V. Phulwati and Ors. Civil Appeal No. 7217/2013 [19] Bench comprising of Adarsh Kumar Goel and Anil R Dave [20] Enforcement date of Amendment Act, 2005 [21] Court comprising of Justices A. Bhushan & A.K. Sikri. [22] Ganduri Kotteshwaramma and Anr. V. Chakiri Yanadi and Anr. Civil Appeal No. 8538/2011 [23] Bench comprising of Justices Arun Mishra, S. Abdul Nazeer & MR Shah [24] Obstructed Heritage – When the property entitled to heirs after the death of owner of property or single male coparcener. [25] Hindu Succession Amendment Act, 2005 [26] Article 14 of constitution of India.

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