Decoding the rights of a daughter as a coparcener of a Joint Hindu Mitakshara Family

By Sanjiv Kumar Trivedi, Mahima Cholera, on April 28, 2023

POSTED IN Family Estates & Trust Planning,

Decoding the rights of a daughter as a coparcener of a Joint Hindu Mitakshara Family.
By Sanjiv Trivedi, Partner and Mahima Cholera, Associate

Introduction :

In a recent judgment of the Hon’ble Supreme Court delivered on 29th March, 2023 in Prasanta Kumar Sahoo & Ors. Vs. Charulata Sahoo & Ors., the rights of a daughter as a coparcener of a Joint Hindu Mitakshara Family have been clearly enunciated.

In this case, the Court was dealing with a suit for partition filed by a daughter claiming 1/3rd share in the ancestral as well as self-acquired properties of her deceased father. At the time of filing of the suit in 1980, the daughter was not entitled to any share in the coparcenary property of the Joint Hindu Mitakshara Family. However, by the time the litigation reached the Apex Court, the Hindu Succession (Amendment) Act, 2005, enabled the daughter to claim an equal right as that of a son in the coparcenary property.
The overall effect of the Amendment Act has been simplified and summarised herein below to give a clear picture about the rights that a daughter can claim in coparcenary property.

Decoding the rights of a daughter :

In the section, we deconstruct the rights of a daughter as has been brought about by the 2005 amendment to the Hindu Succession Act and subsequently interpreted by the Hon’ble Supreme Court in the case of Vinita Sharma Vs. Rakesh Sharma & Ors. (2020 Vol 9 SCC Pg.1) and Prasanta Kumar Sahoo & Ors. Vs. Charulata Sahoo & Ors. (2023 LiveLaw SC (262).

I. Nature of the right

The daughter has been recognized as a coparcener by birth with equal rights and liabilities as that of a son in a Joint Hindu Mitakshara family. This also entitles the daughter to claim partition of the joint family property which right was exclusively available with sons prior to the Amendment Act of 2005.

II. Effect of date of birth of daughter on her right

A daughter who is born before the commencement of the Amendment Act of 2005 can claim coparcenary rights. However, her claim will be with effect from the date of the amendment i.e., 9th September, 2005 subject to the following exceptions provided in Section 6(1) read with Section 6(5):

A daughter born after the coming into force of the Amendment Act will not get any right over any property that has been alienated by partition or testamentary disposition which has taken place before 20th December, 2004. In this regard, it is further clarified that “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a Court.

III. Effect of date of death of the coparcener

The date of death of the coparcener is immaterial. In other words, it is not necessary that a coparcener whose daughter is conferred with the right is alive or not on the date of coming into force of the Amendment Act, 2005. This is because the daughter by virtue of the statutory right will step into the coparcenary as that of a son by birth.

IV. Oral partition prior to 2005

In view of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition taken place prior to 2005 will not be accepted to deny a daughter her share in the coparcenary property.

V. Marital status of a daughter

In the event the daughter is married prior to coming into force of the Amendment Act, the marital status of the daughter will not affect the statutory right conferred upon her and she will remain entitled to claim her right as a coparcener in the joint Hindu Mitakshara family in which she was a coparcener as a daughter.

However, in the State of Uttar Pradesh, the U.P. Revenue Code, 2006 does not extend the benefit of inheritance to married women in respect of agricultural land holdings. While a similar situation existed in Uttarkhand, the same has been remedied with co-ownership rights for married woman recently.

VI. Effect of pre-deceased daughter

The surviving child of a pre-deceased daughter will be given a share in the coparcenary property in terms of Section 6(3) upon the death of the coparcener. In fact, if the child of the pre-deceased daughter has died then, the surviving child of such pre-deceased child of a pre-deceased daughter would be allotted the said share, had it been alive at the time of the deemed partition.

VII. Suit for partition filed by a daughter prior to 2005

If the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefits from such amendment. Therefore, a daughter who has filed a partition suit prior to 2005 or is a party to a partition suit filed prior to 2005, will get the benefit of the amendment.

Observations

From the aforesaid summary of the rights available with a daughter as a coparcener it is evident that the law has acted as a tool of bringing about social change for conferring equality between daughters and sons under Hindu Law.

It is in fact pertinent to note that the judgment of the Hon’ble Supreme Court in Prasanta Kumar Sahoo (Supra) finally sealed all possible avenues of misuse by holding that a daughter’s claim for partition cannot be disregarded on the basis of a plea of oral partition or preliminary decree of partition made prior to 2005. In fact, the Apex Court has also confirmed that the change in law will accrue to the benefit of all daughters who may have filed for partition even prior to coming into force of the Hindu Succession (Amendment) Act, 2005.

The effective implementation of the objective of the aforementioned amendment requires all States to amend any conflicting legislations (such as the U.P. Revenue Code) to bring about equality in all aspects of property rights for women. Till such time, there will be equality in principle and not in reality.