Coparcenary Right of a Daughter: Case Law

Coparcenary Right of a Daughter: Absolute Right v. Conditional Right

Regarding a daughters’ right in her father’s ancestral property, till date there were so many confusions, everyone was confused whether she had right or not but…

The judgement in the case of Vineeta Sharma Vs. Rakesh Sharma that delivered on 11th of August 2020, has shaken the whole country. It is one of the landmark judgements that will benefit the entire Hindu Community including Sikh, Buddhist, and Jaina, as it is believed.

 

The significant point of this judgement is – now daughter has been given absolute right over the coparcenary property or you can say ancestral property.  Till date it was conditional. However, after this judgement, believe me, my phone is ringing continuously. People from every corner of this country asking questions that now can she get share in her father’s ancestral property?

Interesting….. hai na!

So, stay with me, in this article, I will try to simplify all such legal provisions regarding the rights of a daughter in her father’s ancestral property or her coparcenary rights.

Just pay attention, believe me after reading this article, you can yourself decide that whether you have the right in your father’s ancestral property or not.

So, in order to make it simple and understandable:

I have categorized the whole concept into THREE Phase:

• The first one is – 1956 to September 8, 2005.
• The second one is – September 9, 2005 to August 10, 2020 &
• The third phase is – August 11, 2020 to till date and ……

 

Now, we will briefly understand the meaning of all these three phases:

Remember, the first one is – the period between 1956 and September 8, 2005. 

It was the period of the Hindu Succession Act, 1956. During this period, daughter had not been given any coparcenary right or right in the ancestral property at all. So, for your understanding, I repeat, between 1956 and September 8, 2005, a Hindu daughter had no right in the ancestral property.

Now, come on second period, which enacted on September 9, 2005 and remain active till August 10, 2020. This was the period of Hindu Succession (Amendment) Act, 2005.

If we see, some of the Supreme Court’s judgements, we will find that, this period was full of confusion for everyone, as there was no consensus in the Supreme Court’s judgements itself. In some judgements, if coparcenary right is given to a daughter, then in some other judgements it is not. Instead, conditions are defined to have the coparcenary right.

Though the Hindu daughters are given equal rights in the coparcenary property as that of a Son by section 6 of Hindu Succession (Amendment) Act, 2005, but raised the controversy arose in giving effect to these provisions.

The controversy arose mainly with regard to: 

1. Whether the amended provisions have to be given retrospective operation, i.e. prior to 9.9. 2005?

2. Whether such coparcenary right will be given only to those daughters who born after September 9, 2005 or also will be given to all daughters irrespective of her birth date or even marital status?

3. Whether the provisions would apply even if disposition or alienation including any partition or testamentary disposition of property, which had taken place before the 20th day of December, 2004.

4. Whether oral partition and unregistered partition deeds are to be included in the definition of 'partition' used in the Explanation to amended Section 6(5) of Hindu Succession Act, 1956.

In fact, after 2005, all such questions have never been addressed unanimously. 

The division bench of the Hon’ble Supreme Court in Prakash v. Phulavati (2016), held that section 6 of the Hindu Succession Act 1956 (as amended in 2005) is not retrospective (pay attention not retrospective) in operation, and it applies when both coparceners and his daughter were alive on the date of commencement   of   Amendment   Act,   9.9.2005.  

The   Court   further held that the provision contained in the Explanation to section 6(5) which provides for the requirement of partition to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1)   or   section   6(5),   including   its   Explanation.   The   registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. So, the provisions of section 6 have been held to be prospective.

However, merely after two years, in 2018, the other division bench of the Hon’ble Supreme Court in Danamma @ Suman Surpur . v. Amar’ (2018),  held   that   the   amended provisions   of   section   6   confer   full   rights   upon   the   daughter coparcener.   Any   coparcener,   including   a   daughter,   can   claim   a partition in the coparcenary property. In this case, the Coparcener (father) died in the year 2001, leaving behind two daughters, two sons, and a widow. The daughters, sons and the widow were given 1/5th share in the property even if Coparcener's father was not alive when the substituted provision of section 6 came into force.

Therefore the Hon’ble Supreme Court in ‘Danamma @ Suman Surpur’ held that section 6 is retrospective in operation, and it applies  even if a coparcener (i.e. father) was not alive on 9.9.2005, i.e. the date of commencement   of   Amendment   Act 2005.

Due to above conflicting verdicts rendered by the Hon’ble Supreme Court in “Prakash v. Phulavati” and ”Danamma v. Amar” the matter was referred to larger bench.

It was the time, when our third phase begins:

The three judge’s bench of the Hon’ble Supreme Court in ‘Vineeta Sharma v. Rakesh Sharma’ case considered both the contradictory verdicts mentioned above and held as under: 

 (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) The most importantly, since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. 

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. 

However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.  A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

Moreover, I summarize the whole concept in three sentences:

Remember, the first phase i.e. period between 1956 and September 8, 2005.

During this period, a daughter had no coparcenary right at all. Okay

The second phase i.e. between September 9, 2005 and August 10, 2020:

During this period a daughter had given conditional right, which means, if her father would have been alive on the date of enactment of the rule (i.e. September 9, 2005) only then coparcenary right can be claimed; however, this provision of the Supreme Court overruled by Supreme Court itself in the case of Danamma v. Amar; so the confusion was there…something like hai ki nahi ……hai ki nahi…

So, in third phase, the judgement of Vineeta Sharma v Rakesh Sharma case, resolved the confusion by giving the absolute coparcenary right to a daughter; so, in order to claim the coparcenary right, there is no need to check whether father is alive on September 9, 2005 or not. 

Now, any daughter irrespective of her date of birth, marital status, or even her father’s death date, can claim her coparcenary right. 

I believe, now everyone of you have the clear and transparent idea that whether you have coparcenary right or not; however, if still you have any question or confusion, you may ask through the comment box given below:

Vineeta Sharma Vs. Rakesh Sharma (Click here to Read Full Judgement)