Tuesday, September 19, 2023



    This August, the Supreme Court ruled that the right of a daughter to coparcenary property – the ancestral property of an undivided Hindu family – is equivalent to that of a son and that those rights can be asserted by the daughter even if her father had died before September 9, 2005, the date on which an amendment to the Hindu Succession Act came into force granting equal share to the daughters.

    Sisters who have been deprived of equal proportion of the ancestral property of their deceased father will now be entitled to claim their due. Since a coparcenary just ascertains who its members are and does not set the shares, it is possible to change a preliminary declaration to ensure equal shares for all daughters.

    The matter started with a married daughter, Vineeta Sharma, asking the Delhi high court for her share as a coparcener. Since there were conflicting views in the Supreme Court – in Phulwati and Mangammal, the court stated that the daughter could only claim her share if her father was alive on 9 September 2005, while in Danamma, the court stated that her birth was sufficient to give her rights regardless of whether her father was alive or not – the case was referred to a larger bench that was the author of the late.

    Reforms in Hindu Law

    Looking at the past of Hindu law reforms, it’s not an intrepid or path-breaking step but a rational continuation of the improvements that have come so far.

    Duncan Derrett commends in his Essays in Classical and Modern Hindu Law that the best studies of property as a definition are made by ancient Indians, and that they are largely unknown since they are in manuscripts. A text he chooses from says the property isn’t an impartial sui generis entity. It’s ‘a settled impression’ that depends on acquisition awareness, or rather acquired awareness, which in turn implies understanding the methods of acquisition enabled. [3]

    If we are deeply convinced that women are not entitled to land, the personal property laws will of course be as they are until they are brought into line with the Constitution. Coparcenary property is an important patriarchal principle and the Hindu Succession Act took its time to do away with it. The cycle started in 1956 but has only now reached a logical conclusion

    The Hindu Succession Act, 1956, was the most crucial reform since it had to do with property, which is a key to equality and empowerment between the sexes. The original draft of this Act attempted to scrap the coparcenary proprietary concept. They denied this vehemently. Sita Ram Jajjoo of Madhya Bharat said during parliamentary discussions, “We feel the pinch here because it touches our pockets. We, this house’s male representatives are disproportionately majority. I do not want a majority dictatorship to be forced on the minority, the female members of this Assembly.’ But no one agreed with him.

    According to Nehru, the passage of Hindus-related legislation is. “.. not innovative in any way in the changes they bring about and yet there is something innovative about them. They opened a barrier and somewhat cleared the way to progress for our womenfolk.” [1]

    “Something” is a very suitable term, for there was no equality with regard to coparcenary property or agricultural holdings under the 1956 Act. Courts were willing to expand the rules applicable to coparcenary property, which is basically a male domain, to the property of female members of the devadasi group, primarily a female domain (Chalakonda Alasani v. Chalakonda Ramachalam 1867(2) Mad. H.C.R.P.56). But the sharing of property for which one had the ‘settled feeling’ that only male members could appreciate it, has gradually happened.

    In the present case, it was argued that the 2005 amendment recognizing women as co-parenting women can only be prospective – that, unless the father was alive on the date of enforcement of the Amendment Act, the daughter’s right could not be recognized; that the amendment was not intended to unresolved matters; that, if a preliminary decree was passed, the only thing left to do was to demarcate. The crux of these concerns was that the amendment was forward-looking and not retrospective.[2]

    The Supreme Court, however, has now held that the modification has a retroactive effect. It expounded:

    From the date of its enactment, the prospective statute operates which confers new rights. The retrospective law works backward, suppressing or impairing vested rights gained under existing legislation. A retroactive statute is one that has no retrospective operation. It will work in the future. Yet its operation is based on the character or status that emerged earlier.

    Just the male members of a Hindu family had coparcenary rights before the reform in 2005. And coparcenary ownership is a birth-right. Today women are entitled to the same privilege. That is pretty easy. From the moment the daughter is born, it’s a right recognized just as if she were a son. Consequently, this status operates from the moment she is born. “The right of the co-parceners is by birth. Therefore, it is not at all appropriate for the daughter’s father to live as on the date of the amendment, because no obstructed heritage has bestowed on her the privileges of a coparcener.”

    The Supreme Court declared that the injustice of disparity “has now been removed by amending the provisions [of the Hindu Succession Act] in compliance with the constitutional spirit.” Any agreement that is real and has become final is saved and is not vulnerable to attack and can not be reopened. But sham transactions that are bound to get trotted up must not stop the daughter of the coparcener from getting her share.

    In 2019  revisiting Tulsamma v. Sesha Reddi’s four-decade-old case for the journal.  The case was related to the limited right of women to property flourishing into a full one as per section, The Hindu Succession Act 14(1). I called it a beacon light, “because it recognized that in the room of women’s property rights, the dark corners had to be illuminated by statute. The judgment was handed down in 1977, and even attempts to reopen it was made in 1991, but the Supreme Court declined to take the retrograde measure to reopen the ratio of Tulsamma. Letting go of property rights is not easy, nor recognizing rights that have not been recognized so far. [3]

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