This blog has been authored by Ishaan Saluja a first year law student at Hidayatullah National Law University, Raipur
Family law is governed by various personal laws apart from the common law. For instance, the Hindu Marriage Act governs the marriage of Hindus and the Hindu Adoption and Maintenance Act deals with the maintenance of the spouse and children. Likewise, there is another element of the society which needs to be governed by law to maintain stability and mark the rights and liabilities of each and every individual. This element is intestate property which is dealt with by the Hindu Succession Act of 1965 (hereinafter referred to as the Act). Since the discussion is about the Hindu Undivided Family, some aspects need to be discussed before we deal with the Act.
The two schools of the Hindu Undivided Family (HUF) are the Mitakshara & Dayabhaga Schools. There are some differences between these two schools. But before we discuss that, let us understndwho co-parceners are.
In simple language, a co-parcener is a person who has a right in the share of the properties of a HUF.
Except for Bengal and Assam, the Mitakshara Law applies in India. According to this school, the son acquires an interest in the ancestral property by birth. under this statute. Consequently, under the Mitakshara Rule, ancestral property passes to survivorship upon the death of a coparcener. Mitakshara school acknowledges two types of property devolution – Devolution by Succession for joint family property; and Devolution by Survivorship for property owned in severalty by the last occupant. Only the male members are considered the co-parceners under this school but this was changed by the Hindu Succession (Amendment) Act, 2005. After the said amendment, the females are also considered as the co- parceners of a HUF.
The Dayabhaga Law includes Bengalis and Assamese living in the states of Bengal and Assam, as well as other areas of the country. According to this school, the son does not inherit any rights to the ancestral property by birth. according to this statute. When the father dies, the son’s right emerges for the first time. As a result, all resources pass down through the generations rather than through survivorship. The coparcenary is created only when the father dies, according to this school of law. Females are already considered coparceners under this law. Dayabhaga law thus, acknowledges only devolution by succession and not devolution by survivorship, unlike Mitakshara law.
The Amendment of 2005
With the amendment to the Act in 2005, only the Mitakshara school was affected because prior to the said amendment only the male members of the HUF had the right to become the co-parceners. But the said amendment also provided rights to the daughters of the HUF. Since Dayabhaga already provided the rights to the female members as well, there was no effect of the amendment on this school of law.
Prior to the 2005 amendment, a HUF's coparceners were all males, while all women were considered only “members”. Their rights varied as a result of this variation. Members like daughters and mothers only had the right to maintenance from the HUF house, while a coparcener had the right to request property partition. If a division happened, they would have obtained their share. They did not, though, have the legal right to seek a division. When a daughter married, she lost her HUF membership, which ensured that she lost her claim to upkeep as well as a stake of the HUF's property if the division happened after her marriage. In addition, only men, not women, were qualified to become the Karta of a HUF.
But after the amendment, section 6 of the Act which deals with the devolution of the property, states that in a joint Hindu family governed by Mitakshara law, “the daughter of a coparcener shall: by birth, become a coparcener in her own right in the same manner as the son; have the same rights in the coparcenary property as she would have had if she had been a son; and be subject to the same liabilities in respect of the said coparcenary property as she would have been if she had been a son.”
As a result, daughters now have absolute coparcenary privileges and may become the Karta of the HUF's. This transition from being a member to being a coparcener, though, is available only to daughters. Women who become members of a HUF by a matrimonial union would be regarded as such. It is worth noting that a daughter who marries will no longer be part of her parents’ HUF. She will, however, remain a coparcener in the HUF. In the event of her death, her children would be entitled to a share of a HUF property at the time of its division. If none of her children survives, her descendants will be able to sue for her share of the estate.
The coparcenary rights granted to daughters by the recent Supreme Court decision will only apply to the coparcenary property's inheritance. The rules of the HSA shall continue to apply to a daughter's interests in her father's self-acquired lands. The father's self-acquired property will pass either by testamentary or intestate inheritance. Testamentary succession occurs when a parent makes a legitimate will specifying to whom his property should be bequeathed after his death. In the absence of a living will, the father's property will be distributed to his legitimate descendants under the rules of intestate succession.
The conflicting stance of Court
The amendment to section 6 of the Act has been controversial in nature. There have been various instances where the Supreme Court in its ruling has held that it would have a retrospective effect whereas in some cases it has held that it would not have a retrospective effect. Although women are heirs to their father's property since 2005, a woman's position to inherit the property of her father was vague at the time the legislation was enforced.
In the case of Prakash vs Phoolwatia, the two-judge panel of the Supreme Court indicated that the benefit of the amendment in 2005 can only be granted to 'living coparcener daughters'. Section 6, which means it would apply only if both the coparcener and the daughter were present on the 9th of September 2005.
In Danamma vs Amar, Section 6 was held to extend retrospectively by the Supreme Court. The father in this case passed away in 2001, leaving two daughters, two husbands, and a widow. The Court had held that “it is the very factum of birth in a coparcenary that creates the coparcenary, hence the sons and daughters of a coparcener became coparceners by birth,” The Court as a result, held that, though the father was not alive in the year 2005 when the amended Section 6 came into effect, the same share of the coparcenary property was to be granted to both the daughters.
The above-mentioned conflict was resolved in the recent landmark judgement given by the apex court in the case of Vineeta Sharma vs Rakesh Sharma, The Court ruled that a coparcener's daughter has equal rights to Hindu Undivided Family (HUF) property and family property by birth, regardless of whether her father died before or after September 9, 2005.
The reasons previously provided by courts, including the country's highest court, that a woman cannot become a karta because a karta must be a coparcener. However, in 2005, Section 6 of the Act, was amended to grant daughters the same rights as sons in Hindu Mitakshara coparcenary properties. Generally, the Hindu Succession Act of 1956 also does not recognise a woman as karta. It is important to remember that amendments are just the first move. The statute will only function as a deterrent; it cannot guarantee that justice is served. A positive shift in social norms is needed for this. The rule will still be a step ahead of the situation. Women must understand that the law does not discriminate against them when it comes to land and that they cannot be taken advantage of any longer. Justice is often withheld solely due to a lack of comprehension. Hopefully, women will get to learn more about their rights. In reality, they should be encouraged and allowed to assert their rights in situations where they are being refused.