Author – Tanisha Vijayvergiya, Student at Lovely Professional University, Jalandhar (Punjab)
INTRODUCTION
Every person has the right to be treated equally in all aspects of life. However, the standing of Hindu women has changed dramatically since the dawn of Hindu civilization; she was not considered as a coparcener and no right had been given through which she can claim her benefit in coparcenary property. A woman’s status was regarded as unequal, and she was forced to think unequal as compared to men, especially in her entitlement to the property. The Indian Parliament passed the Hindu Succession Act in 1956. According to Hindu law, the Hindu Succession Act, 1956 is the only Act that deals with succession and inheritance of property. This Act applies only to Hindus, Buddhists, Jains, Sikhs. In this Act, two types of property have been defined:
- Ancestral: The property which a person inherited from his grandfather, great-grandfather, great-great-grandfather[1] will be called Ancestral property.
- Self-Acquired: The property which a person builds on his own strength will be called Self-Acquired property.
Let us put a glance at the Joint Hindu Family’s structure:
A1 is the person who has the Ancestral property, and W is his wife. Then S2 is Son, W is his wife, and D is Daughter of A1. Then D and S3 are Granddaughter and Grandson of A1, D and S4 are Great-Granddaughter, and Great-Grandson of A1, D and S5 are Great-Great-Granddaughter and Great-Great-Grandson of A1. All the people mentioned in the above structure will be considered as members but, ‘Will these all members also be coparceners?’. No, coparceners are those people who can claim or have the right over ancestral property.
GENDER DISCRIMINATION
Before the 2005 amendment, the Hindu Succession Act of 1956 stated that Coparceners could be those people who would be lineal descendants of the same ancestor. It means that S2, S3, S4, and S5 will be the coparceners of the Ancestral property. But the Lineal Descendants would be considered up to the 3rd Generation next to the Holder. It means that only S2, S3 and S4 will be coparceners of the ancestral property.
In case if any one of the Lineal Descendants died then, the next one will be added to the list of Coparceners. If A1 died then, S5 will be considered as the next coparcener.
But according to this Act, only male lineal descendants had the right to acquire ancestral property because of the same bloodline. If there is a daughter, a wife, a widow, they will be disqualified from the coparcenary rights, only male lineal descendants will be qualified. So, this was the problem of the Hindu Succession Act, 1956. So, whoever had that acquired property, the coparcener of the same is his son, then grandson, then great-grandson, then great-grandson and so on. This Rule is known as the Survivorship Rule, and it is defined in Section 6 of the Hindu Succession Act, 1956 i.e., “When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary”[2]. This Survivorship Rule becomes the main criticism of the Hindu Succession Act, 1956.
2005 AMENDMENT ACT (SECTION 6)
If any person makes the will that the division of his property will be done like this, then that will would be considered at the time of division. But a person can make will only of his self-Acquired property, not of the ancestral property. The division of ancestral property has been done through the laws made under the Hindu Succession Act, 1956 i.e., section 6. But, in 2005, during the amendment of the Hindu Succession Act of 1956, the rule of survivorship had omitted by introducing Testamentary, and Intestate Succession.
- Testamentary Succession: It means if a person makes a will, the distribution of self-acquired property would be done according to that will. And it becomes very easy to distribute the property to the entitled person. Under this Succession, one can transfer his self-acquired property to anyone by making the will, such as mother, daughter, widow, and stranger can be.
- Intestate Succession: The word ‘intestate’ means a person died without leaving a will and this definition is written in section 3(g) of the Hindu Succession Act, 1956. Intestate succession means if a person died without leaving a will, the property will be allocated to the class I- IV heirs[3].
| CLASS 1 HEIRS | WIDOW | SON | DAUGHTER |
These four classes were introduced in the 2005 Amendment, and different people are part of these classes. If a person dies without making any will then, the class I heirs have first right on that property. Out of class I heirs, the widow will be considered the first successor, the son becomes the second successor, and the third successor would be considered a daughter. But, according to the 2005 amendment, these three people will get equal rights in the property.
After the 2005 amendment, Daughters will also become coparceners and it is accepted that the daughters are coparceners since birth. This amendment also stated that daughters will have equal liability as sons have.
CONFLICTING CASES
The amendment of 2005 came into force on 9th September 2005[4]. The problem that occurs after the amendment is whether the father should be alive in 2005 or not. Three cases had tried to answer this question and at last, we get the answer from the Judgment of the recent case which is mentioned in the below table:
| CASE | Prakash v. Phoolwati[5] | Danamma @Suman Surpur V Amar Singh[6] | Vineeta Sharma v. Rakesh Sharma[7] |
| YEAR | (2016) | (2018) | (2020) |
| BENCH | Justice Anil Dave and Justice A.K Goyal.[8] | Justice A.K Sikri and Justice Ashok Bhushan.[9] | Justice Arun Mishra, Justice S. Abdul Nazeer, and Justice M.R Shah.[10] |
| JUDGMENT | The Supreme Court held that on 9- September-2005, the father should be alive. | The Supreme Court held that even if the father died in 2000, still the daughter can claim her right. | The Supreme Court held that Women have the right to ancestral property by their birth. It is not a matter of issue whether the father should be alive in 2005 or not. |
So, in the 2016 first case came to the Supreme Court i.e., Prakash v. Phoolwati[11], this case was headed by the two-division bench. The Supreme Court stated that the father should be alive on the date of enforcement of the 2005 Amendment because the surviving daughter of the surviving coparcener will only get the right to claim the property. After two years in 2018, the second case which came to the court was Danamma v. Amar Singh[12], this case was also headed by the two-division bench. The Supreme Court held that even if the father is not alive on the enforcement date of the 2005 Amendment, still the daughter will get her right. These two judgments became conflicting and causing confusion about which has to follow, former or latter. So, these misconceptions have been solved by the Vineeta Sharma v. Rakesh Sharma[13] Case. Earlier both cases were headed by the two-division bench, so this case has been headed by the three-division bench. By solving the misconception, the Supreme Court held that the rights which women have over ancestral property, they have got it by birth like sons. Whether the father is alive or not, it will not affect their rights.
CONCLUSION
Before the 1956 Act, Hindus ruled the Shastric and Customary laws, which differed by area. It differed by caste sometimes even within the same location. After the 1956 Act, Ancestral property was to be devolved by survivorship rule only. Women were not recognised as coparceners, only males were recognized up to three generations which gives birth to discrimination between men and women as well as violates the Fundamental Rights of women, i.e., Article 14 (Right to Equality)[14], Article 15 (Right against Discrimination)[15].
To end this Gender discrimination, the lawmakers brought an amendment in 2005. In which, Section 6 of the Act amended, and survivorship rule abrogated as well as daughters were also recognised as coparceners. This amendment also introduced Testamentary and Intestate Succession and ended the violative nature of Fundamental Rights. After this amendment, the Supreme Court of India faced three conflicting cases which later, becomes Landmark Judgments. But the judgment of the first two cases was opposite to each other which created confusion then, the last case cleared the confusion to the disagreement with the 2015-16 case judgment and held that the father need not be surviving on the date of enforcement of the 2005 amendment.
OPINION
In my opinion, since the beginning, daughters should be given their own rights but it is also acceptable that at that time, thinking of society was conservative concerning the daughters and women so such type of discrimination was normal. But, the development of people’s thinking, it was necessary to change the mindset and the same was done by the Supreme Court in the recent Judgment of Vineeta Sharma v. Rakesh Sharma and also quoted,
“Once a daughter, always a daughter.”
Therefore, the equal right given to the daughter in the ancestral property is a good call of the Supreme Court of India because it is becoming a way to empower women and make them strong to fight against their rights and discrimination.
BIBLIOGRAPHY
- Diwan, Paras and Peeyushi, FAMILY LAW, Faridabad (Haryana), Allahabad Law Agency, 2018
- Hindu Succession Act, 1956, (No. 30 of 1956 dated 17th June 1956).
- Hindu Succession (Amendment) Act, 2005, (No. 39 of 2005 dated 9th September 2005).
- Prakash V. Phoolwati, (2016) 2 SCC 36.
- Danamma V. Amar Singh, (2018) 3 SCC 343.
- Vineeta Sharma V. Rakesh Sharma, (2020) AIR 3717 (SC).
Ambedkar, B. R., THE CONSTITUTION OF INDIA, India, Samyak Prakashan, 2018.
[1] Paras Diwan and Peeyushi Diwan, FAMILY LAW 392 (Allahabad Law Agency 2018).
[2] Hindu Succession Act, 1956, Section 6, No. 30, Acts of Parliament, 1956 (India).
[3] Paras Diwan and Peeyushi Diwan, FAMILY LAW 468 (Allahabad Law Agency 2018).
[4] Hindu Succession (Amendment) Act, 2005, No. 39, Acts of Parliament, 2005 (India).
[5] Prakash v. Phoolwati, (2016) 2 SCC 36.
[6] Danamma @Suman Surpur V Amar Singh, (2018) 3 SCC 343.
[7] Vineeta Sharma v. Rakesh Sharma, (2020) AIR 3717 (SC).
[8] Id. at 5.
[9] Id. at 5.
[10]Id. at 5.
[11] Id. at 5.
[12] Id at 5.
[13] Id at 5.
[14] INDIA CONST. art 14.
[15] INDIA CONST. art 15.