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Recent Development In The Property Rights Of A Daughter

Historically, women were deprived of property rights in their families, on account of the patriarchal system, where women were considered inferior and therefore were not given the same rights as men. The succession was governed by the doctrine of survivorship, where on the demise of a coparcener, the share of that deceased was divided into the living coparceners, A coparcenary is a legal institution and a smaller unit within the joint Hindu family consisting three generations of male descendants from a common male ancestor in the family. Women not being a part of this unit could not claim any right in the ancestral property.

The discrimination continued until the legislature noticed these unequal and unfair property rights which were arbitrary. Complying with the constitutional mandate to provide equal rights to women, the legislature brought the Hindu succession act 1956, under the act an attempt was made to remove the gender gap that existed in the customary laws for ages.

But Hindu succession act, 1956 was also not immune from the patriarchal view. Again, the daughters did not get the same status as enjoyed by the sons on the property. A much-awaited change was brought through a progressive amendment act in 2005 in sec 6 of the act, with this amendment daughter also became coparcener, consequently, they acquired the birth rights in the ancestral property. Now the rights of sons were extended to daughters, which made both stands on the same pedestal.

However, the substituted section 6 brought some ambiguity, it gave birth to conflicting interpretation as to when a daughter becomes a coparcener and from what date she can claim the right in the property.

Conflicting opinions of the Apex court
The amended sec 6 states on and from 09-09-2005, the daughter of a coparcener, shall, by birth become coparcener. The words indicate that the application of this section is prospective. While the other expression used in section 6 is the daughter of a coparcener shall, by birth become coparcener, birth being an antecedent event might have occurred before 09-09-2005. This created confusion as to on what date a daughter has rights in the ancestral property. Some issues arose from the divergent interpretation of sec 6 of the act.
The issues are as followed
  1. Whether sec 6, has a retrospective application or a prospective?
  2. Whether a daughter becomes a coparcener in her own right or through her father?
First, the issues were considered in Prakash v. Phulwati (2015), the division bench held that the effect of sec 6, is not retrospective as the words on and from suggest otherwise. And the subsequent amendment cannot change the status of an already settled position unless expressly provided by the act. In the absence of any such expressed provision, it can safely be inferred that the share which has already been divested cannot be touched upon and the effect of the legislature is prospective.

The Court in this case also laid down that the provisions of the amendment apply prospectively to living daughters of living coparceners as of 9.9.2005, irrespective of when such daughters are born.

This simply means that if the father of the daughter died before 9-09-2005 then the daughter would have no claim on property as a coparcener. Therefore, the father necessarily had to be alive when the act was amended. The daughter of a coparcener means a living daughter of a living coparcener, once the father dies then a notional partition takes place and his undivided interest is crystallized.

In another leading case, Danamma V. Amar (2018), a two-judge bench allowed the claim of the daughters on the ground, a living daughter even born before 2005 can claim a share in coparcenary property, here the court accepted Phulwati partially, and no statement was made on father's death. The date of the father's death was not considered and was overlooked.

In a later case Mangammal v. TB Raju (2018), the ratio of the Phulwati case was relied upon that the father must be alive on 09-09-2005 to pass the coparcenary rights to daughters. And the daughter of coparcener means the living daughter of a living coparcener. Hence, the daughters lost the case as their father predeceased them before 09-09-2005. Phulwati and Danmma were referred. The court applied the decision of Phulwati and held Danmma's decision as incorrect for not considering the date of the father's death.

Settling point
The controversy was finally settled by a recent progressive judgment in the Vinita Sharma V. Rakesh Sharma (2020), where a three-judge bench analyzed the previous contradicting and divergence views and held coparcener (father) does not necessarily be alive at the date of the negated the ratio of the Phulwati case which laid down only a living coparcener could pass the coparcenary rights, if the ratio of phulwati is followed fixing a condition of a father being alive at the time of the amendment, it would frustrate the fundamental object of the amendment, which was brought fulfilling the constitutional mandate of providing equal rights to women based on gender equality, therefore the daughter is made a coparcener by birth.

Since the coparcenary right is divested by birth, the death of the father will not affect the right of the daughter, she will enjoy this right even if the father predeceased daughter before the amendment.

The bench further observed that the effect of the amendment is retroactive, which is because the provision expressly uses the term on and from 09- 09-2005 which suggests it's a prospective application, but the right which to be claimed after the amendment is based on a past incident that is the birth of a daughter. Even after the application of notional partition daughter can claim right in coparcenary property after the amendment, and it cannot be treated as an actual partition. It is a legal fiction that is created only for the purpose to determine the share of the deceased coparcener. Provided she has not parted away.

Conclusion
This judgment is an excellent development in the direction of achieving gender equality. The bench interpreted the law to complement the object of the act. Although the decision takes the country a step forward towards gender justice, there is still a long way to achieve equal property rights on the grassroots level. Bringing a behavioral change and societal acceptance will play a bigger role, so the daughters get their legitimate rights without nocking the door of the court. Therefore, what all needs to change is the patriarchal mindset which has made a tight grip on society.

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