'Daughter's Rights On Property | Coparcenary Rights'

Updated: Aug 27


What Hindu Succession Act,1956 primarily talks about ?

  •  Difference between 'Coparcener' and 'Member'. Does it affects the rights in   the property ?

  •  What are the Rights of the Daughters in the Property before or after 2005 amendment ?

  •   Differences of Rights in Ancestral and Self Acquired Property ?

  • Role of Testamentary and Intestate Succession ?

  •   If there is already amended Act of 2005, so what is the actual role of the Judgment i.e., "Vineeta Sharma Vs. Rakesh Sharma, 2020, SC"


Are these aforesaid issues difficult for you to understand ? Are Daughters entitled to equal rights as of today ? Let's get into some detailed discussion and try to solve the Riddle.

Hindu Succession Act,1956 (hereinafter referred as HSA) Primarily deals with the Succession and Inheritance, which in simple words means that who will get the property and by what means the property will devolve among the heirs of the family. The Act is applicable only to Hindus, Buddhists, Jain's and Sikhs. This Act talks about two types of properties i.e., Ancestral and Self-Acquired property.


Ancestral Property is generally acquired by a person, by his Grandfather or Great Grandfather, without being divided/partitioned by the family.


On the other hand, Self-Acquired Property is been acquired by a person through his own income, it has no concern with ancestral property or his family funds.


HSA also talks about the coparcenary rights of a coparcenar in the property. To understand the rationale behind the judgement i.e., Vineeta Sharma Vs. Rakesh Sharma, firstly, it is very important to understand the term "Coparcener" as provided under HSA.


Coparcener in simple words means ; a person who has equal share and rights in the undivided estate.


There is a thin line between the coparceners and members of the family; coparceners are entitled for the ancestral property and on the other hand members are not entitled to claim ancestral property. 


To be very Precise - If a person has self acquired property than the division of such property can take place through Will under which shares of the said property can be allotted by the holder to any person including member or any third person, not being the member of the family. But in the case of Ancestral property, the devolution of property would take place only by the provisions laid down under HSA: Here, the role of coparcener comes into picture, in which only a coparcener can claim a right over the undivided estate and not a member.


Before 2005 amendment, HSA provided that- Only those persons can be coparceners who are "Male" lineal descendants of same ancestor. which means three Generations next to the holder of the Property i.e., up to 3 degrees. According to which Daughter's, Wife's and Widow's were not qualified for the coparcenary rights. This rule of inheritance is also called "Survivorship Rule", which was incorporated under section 6 of the HSA,1956 and practiced over a long period of time. The main criticism of said survivorship rule was that only males can be coparceners and daughters were being sidelined from their rights in the property.




Taking into consideration the huge disparity in devolution of interest in the ancestral property to daughters, an amendment was proposed and introduced in the year 2005, which was enacted on 09.09.2005, wherein two interpretations had been given to the law i.e., Testamentary Succession and Intestate Succession.


In Testamentary Succession; Holder of the property can devolve the share of the property through Will to any person, which includes non-member of the family i.e., any third person also.

&

In case of Intestate Succession; Where the holder of the Property dies without living a Will than the property of such holder will devolve as per four different classes i.e., Class I-IV.


wherein, Class-I includes Widow, Son and Daughter under which all will get equal shares in the property. Moreover, In said amendment daughters had been given the right to be a coparcener, since the time of her birth. Further, daughter will have equal liability in property as of Son.

But this amendment of 2005 dealt with major controversy with respect to the rights of daughters in the property i.e.,


  • Whether it is essential for father to be alive on 09.09.2005 ?

  • What If a father died before 2005 : Can a daughter still claim her share in   the coparcenary  property ?

  • What if there was an oral partition subsequent to the death of father i.e.,       before 2005. Would that deprive the daughter of her right in the property ?


The answers to the above questions were raised several times and courts kept on trying to provide a logical conclusion to that. let's focus on some judgments to find the conclusion:


In "Prakash Vs. Phulavati, 2016, SC", The two Judge's bench comprising Justice Anil Dave and A.K Goel held that it is necessary for the father to be alive on 09.09.2005 as the right will go from living coparcener to living daughter and if father died before 2005 than daughter right in the property stands dismissed.


In "Danamma@ Suman Surpur Vs. Amar Singh, 2018 SC", The two Judges Bench of Justice A.K Sikri and Justice Ashok Bhushan held that even if father died before 2005 still daughter will be given the right in the property. The prime aim of this judgment was to secure the right of daughter's in true sense but that was somewhere partial.


It is relevant to submit here that the aforesaid judgments were in conflicts with each other opinions and created a huge "dichotomy". The unsolved riddle still needed a solution and the solution of said conflict came up in the ruling of "Vineeta Sharma Vs. Rakesh Sharma, 2020, SC". A three Judge's bench comprising Justice Arun Mishra, Justice Abdul Najeer and Justice M.R Shah has clearly held that the daughters have equal right in the coparcenary property since the time of her birth and whether the father is alive or dead on or before 09.09.2005 does not matter at all. The living of father on such date does not affect the right of a daughter in coparcenary property. Furthermore, the so-called oral partition cannot be a ground to deprive the daughter from her part of share in the property. For, exclusion of daughter from her share in the property, one needs to prove the partition on documents. A documentary evidence must be there to support the claim, it may include the acknowledgement of the daughter in the form of NOC (No Objection) or any prima facie proof showing the exclusion of daughter's share from the property by the father itself.


By concluding the long dispute Hon'ble Supreme court also emphasized on the equality of daughters rights ,conferred to them by section 6 of the said Act. 




Authored by

Akshaya kaushik

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