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
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
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
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
The issues are as followed
- Whether sec 6, has a retrospective application or a prospective?
- Whether a daughter becomes a coparcener in her own right or through her
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.
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
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.
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
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.
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.