COPARCENARY RIGHTS IN INDIA: ITS EVOLUTION AND CRITICAL ANALYSIS
This Article has been authored by Divya Sharma, a second-year law student at National Law University, Jodhpur.
“Sons are sons till they get married, but daughters remain daughters forever”. These were the lines quoted by the Supreme court while deciding the matter of coparcenary rights in Vineeta Sharma vs. Rajesh Sharma. With this case the Indian judiciary stepped in the realm of gender equality while hearing a matter of coparcenary rights and upheld the rights of women, breaking all social stereotypes.
According to Black’s Law dictionary, Coparceners are “Persons to whom an estate of inheritance descends jointly, and by whom it is held as an entire estate.” The word coparcenary is used in matters related to Hindu succession law. It refers to “a person who has the capacity to assume a legal right in his ancestral property by birth.” It means ‘unity of title, possession and interest’. It is a creation of law; it cannot be created by the act of parties, except by adoption. Coparcenary Rights in India have had a long past and a present full of robust development. The article discusses the evolution of coparcenary rights in India under Hindu Vedic laws and under the statute of Hindu Succession Act. The article also focusses on the approach of Indian judiciary in dealing with the cases pertaining to these rights.
Coparcenary Rights in India- Its evolution
Coparcenary owes its origin to the concept of Daya i.e. property which has been explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in the ‘Daya vibhaga prakranam vayavahara adhaya’. Daya is only that property which becomes the property of another person, solely by reason of relation to the owner. The words solely by reason of relation exclude any other cause, such as purchase. Narada also approves the meaning of the Daya which is a coparcenary property because according to him, sons can divide only father’s property which has been approved by the learned.
Therefore, the unique concept of coparcenary is the product of ancient Hindu jurisprudence which later on became the essential feature of Hindu law in general and Mitakshara School of Hindu law in particular. In order to understand the coparcenary rights, it is important to understand the following:
1) Hindu Schools of Law
The codified Hindu law lays down uniform laws for the Hindus in the society. These codified laws leave no scope for the application of these schools. Their relevance lies only in those areas in which there is no codified law.
A) The Mitakshara School
In this school of thought, the law of inheritance was followed according to the principle of propinquity which means in order of nearness of blood relation. The Hindu succession act of 1956 was also based on this principle. The allocation of property was premised on the rule of possession by birth which meant that the sons of the family had exclusive right by birth in the property of the joint family while the daughters had no such rights. This rule of allocation was known as the doctrine of survivorship. It basically meant that the property should be allocated to the inheritor who could continue the survival of the family in future, which covertly forfeited the rights of daughter, as far as Indian family structure is concerned.
B) The Dayabhaga School
This school is considered to be the dissident school of the Benaras School. Benaras- has been the seal of the Brahmana learning and the citadel of Brahmin orthodoxy and conservatism. This School is prevalent in Assam and Bengal.
This school is based on the principle of religious efficacy or spiritual benefit. The ones who confer more spiritual benefit are entitled to inherit the property in comparison to those who confer less spiritual benefit based on the Doctrine of Oblations. The immediate benefit of this new theory was the inclusion of many cognates in the list of heirs, excluded by the Mitakshara school which was mainly agnatic. The women in the family may also inherit the property. As per this school, the sons do not have a birth right to the property. In the event of the coparcener dying issueless, his widow has a right to succeed to his share and to enforce a partition on her own account.
2) Hindu Undivided Family
Hindu undivided family consists of people who are lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu undivided family is one that hold joint assets. After separation of assets, family ceases to be undivided. Mere severance in food and worship is not treated as a separation.
Apart from this Hindu jurisprudence there have been laws before the Hindu succession act of 1956, governing to coparcenary rights. Prior to this statute, Hindu Law of Inheritance Act 1929 governed the rights of women in matters of inheritance. This act conferred rights of inheritance upon his son’s daughter, granddaughter and sister.
After that, the Hindu Women’s Right to Property Act, 1937 was passed which conferred ownership rights on women. This law brought significant alterations in the kind of customary laws and schools of thought that were prevalent at that time. It also affected coparcenary laws, partition laws and laws of property, inheritance and adoption. It also addressed the rights of widows and divorcees. Before this law came in force, inheritance was mostly being governed by customary or shastric laws which blatantly ignored the concept of gender equality. It was this 1937 act that took into account this Doctrine of survivorship and gave a death blow to it, upholding the rights of widows and daughters. Under this act, the widow of a deceased coparcener of a Mitakshara undivided family had the same interest which her husband had when he was alive. And a widow was given a right to claim partition.
This was followed by the Hindu Succession Act, 1956. This act upheld the idea of equality by abolishing the concept of “limited estate” given by the Hindu Women’s right to Property act. It also gave women the right to inherit a share of their father’s property. Daughters were recognised as legal heirs of the fathers and received the rights of inheritance of a share of the separate property owned by the father through partition. However, this act, in certain terms, upheld the inequality. The ancestral property of the family was still to be legally inherited by the son, in which a daughter had no right, whatsoever. Therefore, the doctrine of survivorship continued. It was due to these shortcomings in the legislation, that in 2000, the law commission report suggested reforms with regard to women’s right to property. It suggested changes in all the areas that were based on the idea of inequality. These changes were accepted and that led to the Hindu Succession Amendment Act, 2005. The Amendment Act of 2005 in its statement of objects and reasons, stated that the law contributed to gender discrimination, oppression, and negation of the daughter’s constitutional right to equality. It was with this in mind that Section 6 was amended. Section 6 of this amendment challenged the inequal coparcenary rights in Hindu law and due to this the daughters of the family, whether married or unmarried, gained coparcenary rights with the other entire rights and liabilities equal to those of a son. This now meant that the daughter would also be liable for the debts and losses in addition to property shares and other rights. It also provided that the females of the family could now also act as the Karta of the family which they couldn’t previous to this law. Any reference made to a coparcener would also include daughters equally.
Present scenario: The judicial decision that made a mark
Since the 2005 amendment, although rights of women have been recognised, however there were certain issues that came up, challenging the rights of daughters in terms of the congruity of the amendment. One such issue was whether it is necessary that the father of the daughter should be living as on the date of the amendment for the latter to claim the benefit under the amendment of 2005. This issue was raised in Prakash vs. Phulavati. In this case the Supreme court held that “daughters would have a coparcenary right on and from the commencement of the amendment thereby providing clarity that the amendment is prospective in its application which means that the right to coparcenary property would be available only to ‘living daughters’ of ‘living coparceners’ on and from the commencement of the amendment. Neither there is any express provision for the retrospective application of the amendment nor necessary intendment to that effect.” This position was reiterated by the court in Mangammal vs. T.B Raju. Such interpretation, seemed to be highly ignorant of the idea of amendment. It has be acknowledged that the section aimed at providing females with the coparcenary and equal rights as conferred upon the sons. If, therefore, stress is laid upon the words used in the section that ‘ daughters of a coparcener’ are conferred the same rights, it cannot be interpreted that the coparcener has to be alive for such conferment, when the section itself stipulates that the rights amongst the sons and daughters are the same. It is wrong on the part of the courts to create a barrier by interpreting the words ‘daughter of a coparcener’ indicative of the fact that the coparcener must be alive for the daughter to claim her rights as a coparcener. This defeats the very purpose of the amendment which was made on the premise of Article 14 of the Constitution which speaks of equality.
In Danamma vs Amar , the Supreme Court made observations in conflict with the aforementioned cases. This led to a reference to a three-judge bench, which in turn led to the Vineeta Sharma judgment. Under these cases, Supreme court completely refused any possibility of retrospective effect of the amendment. Pertaining to a similar issue in regard to retrospective effect came up in Vineeta Sharma vs. Rajesh Sharma.. The issue in this case was whether with the passing of the Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. In this case, the court held “The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1). Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.”
The Vineeta Sharma verdict operates on the premise that the intent of Section 6 of the Act as amended by the 2005 amendment, was to neither confer its benefits to female successors prospectively nor for that matter retrospectively, but it was to confer benefits retroactively . A legislation applies retroactively when it prescribes benefits conditional upon an eligibility, that may arise even prior to the passing of such legislation. While explaining the concept of retroactive application vis-à-vis the 2005 amendment, it was held that the 2005 amendment makes available to female successors, the benefit of succession on par with that of her male counter parts based on an antecedent event, i.e., her birth. While the Vineeta Sharma verdict deserves appreciation for achieving the objective of gender equality the fact that the controversy took close to 15 years to be finally settled reflects the long journey towards justice. During this time several women have been left without the fruits of their share in the coparcenary property and therefore subjected to significant financial distress.
Many changes have happened in the area of coparcenary rights, giving women their rightful part. Various legislative actions had been taken pertaining to coparcenary rights but the main change brought related to inheritance and succession was in 2005 when the Hindu Succession (Amendment) Act was passed. This act addressed a major concern of gender inequality to an extent. However, there were certain ambiguous sections which were addressed differently in various cases, as discussed. This Vineeta Sharma judgment, on the other hand, as been treated as landmark because it has not only ended the ambiguity but also has upheld the ideas of equality envisaged in the constitution. While there still remain certain areas that need deliberation like shares of Class I female heirs, higher footing to male heirs or partial restriction on the right to will, this judgment deserves recognition for steering through age old gender stereotypes in matters of inheritance and the ambiguity that existed after 2005 amendment and deciding on a matter that puts to rests many conflict with a rightful solution.