Women’s Property Rights
By Advocate Anik
Under the Constitution, both the Central and the State Governments are competent to enact laws on matters of succession. Currently, besides other abovementioned factors, the nature of the land in question, marital status, lack of Uniform Civil Code etc together contribute to the absence of any single body of property rights for Indian women [1]Property rights of Hindu women can be traced back to various schools, like Dayabhaga in Bengal, Nambudri in Kerala and Mitakshara in other parts of India. In an attempt at understanding the law of succession in India, it is very necessary to understand two important schools of law namely the Dayabhaga school and Mitakshara school.
Mitakshara school unlike Dayabhaga school draws a line between self-acquired property and ancestral property. Besides that, it also recognises the concept of “coparcenary”. In Mitakshara school no females except the daughters who have any interest by birth in the joint family property can be coparcener. She has no right to survivorship or partition, though if a partition takes place, certain females are entitled to a share. In the coparcener system, some complications were created by the Hindu Women’s Right to Property Act 1937. The act laid down that the widow of a coparcener would take by succession his interest in the joint family property as it stood at the time of his death. Section 3(3) gives the widow a right to partition also. The quantum of interest to which Hindu widow is the result of the Act is that the right which other coparceners had under the Mitakshara school of taking that interest by survivorship remains suspended so long as that estate ensures. The Hindu Women’s Right to Property Act has been repealed. A new rule of a succession of certain females to the undivided interest of the coparcener has been enacted in Section 6 of the Hindu Succession Act, 1956. However, since the school, there have been wide changes introduced in the composition of the joint family by way of the Hindu Succession (Amendment) Act 2005. Under this Amendment, now the daughter of a coparcener is also a coparcener in her own right and the same manner as a son.
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SECTION 14 OF THE HINDU SUCCESSION ACT 1956
Section 14 of The Hindu Succession Act 1956 has introduced fundamental changes in the
Hindu law of Women’s property. Before 1956 the women’s property was divided into two
categories; one was stridhan and the other was women’s estate. The Hindu Women’s Right to Property Act 1937 gave rise to a new set of inheritance rights to certain Hindu females which had the effect of increasing the bulk of women’s estate but besides that, it had no such prominent effect on the basic division of property of women’s property. In short Section 14 has abolished woman’s estate and has virtually introduced Vijaneshwara’s interpretation of Stridhan. To define ‘Stridhan’ means women’s property but in the context of Hindu law its interpretation in a lot more technical sense.
SUBSTITUTION OF SECTION 6 BY 2005 AMENDMENT ACT
According to the Amendment Act, 2005 in a Hindu Joint Family Governed by Mitakshara Law, the daughter of a coparcener shall-
(i) by birth become a coparcener in the same manner as a son,
(ii) have the same rights in the coparcenary property as she would have had if she had been a son,
(iii) be subject to the same liabilities in respect of the coparcenary property as that of a son
(iv) be entitled to demand a partition of the HUF. (However, the amendment shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property that had taken place before the 20th day of December 2004.)
The entire journey of Section 6 can be well understood with two important case laws which
took place over time.
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a) | Prakash & Ors. v. Phulavati & Ors., (2016)[2]|
The Respondent in the Supreme Court petition had filed a suit in the Trial Court of Belgaum, claiming for partition and possession of certain per cent of ancestral properties, which were acquired by her father and different amount of share in another property. In 1998 Respondent’s father, who had acquired the ancestral property died and post his death, Respondent acquired the ancestral properties. The Appellants challenged this claiming that the Respondent can only acquire her father’s self-acquired properties and not the ancestral property that was inherited by him. When the Amendment act came into force on the 9th of September 2005, the Respondent, as per Section 6(1) of the Act, rightfully claimed her share of the property. On the other side, Section 6(5) of the Amendment Act reads as follows: “Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December 2004”. Whereas the facts of the case show us that the Partition of the property which took place after the death of Respondent’s father was merely notional and not in pursuant of any decree. The Petitioners contested the same claim in the High Court stating that the Amendment Act is not applicable because the death of the father took place before the commencement of
the act, which lead to the partition. The High Court analyzed the judgement delivered by the Supreme Court in the case of, G. Sekar v. Geetha And Ors.[4] here, the apex court clears that any Amendment that will be made in law will apply to the cases, which were in pendency during the procedure of amendments in the law.
The Karnataka HC while ruling in the favour of Phulavati held that an amendment would apply to pending proceedings, even if such an amendment was prospective in its operation. The Appellants appealed to the Apex Court, there the contention was made based on the date of the death of the Respondent’s father. The Appellants claimed that the death happened and the father seized to be a coparcener in the property before the act came into place, meaning that he was no more a coparcener in the family when the Act came into existence. Thus, when she is not even the daughter of a coparcener, there would be no question of applying the Act in her case.
After analyzing the arguments, the Supreme Court referred to the judgement of the case Shyam Sunder v. Ram Kumar[5], where it was held that unless the statute expressly states the applicability can be retrospective, it is implied that the statute intends to apply it prospectively. Based on these grounds, the Court had set aside the Court’s judgement. The court rejected the arguments of the Respondent stating that as the Amendment Act is progressive legislation, it has to be applied retrospectively, saying that even for social legislations, the express mention of retrospective application is necessary. However, in this case, the Respondent in the first place is not considered a coparcener as her father was not a living coparcener as on the date of commencement of the judgment. The Supreme Court held that Amendment Act itself suggests that a daughter has a right in coparcenary property on and from the commencement of the Amendment Act.
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Based on the above-mentioned reasons, the Apex court allowed the Appellant’s appeal. Thus the debate on retrospective application of the Amendment Act has now been put to the rest and the amendment can be applied to the daughters, whose father was living coparcener as of 9th September 2005, regardless of when the daughters are born.
b) |Vineeta Sharma V. Rakesh Sharma[6] |
The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of the parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition.
Section 6 provides parity of rights in coparcenary property among male and female members of a Joint Hindu Family on and from September 9, 2005. The declaration in Section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal as was held by the Court. There doesn’t need to be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. However, a daughter born before can claim these rights only with effect from the date of the amendment, with saving of past affairs as provided in the proviso to Section 6(1) read with Section 6(5).
[7]A finding has been recorded in Prakash v. Phulavati that the rights under the substituted S.6 accrue to living daughters of living coparceners as of 9th September 2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created as survivorship is the mode of succession, not the way of forming a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. The provisions of Section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming as was held in the case.
The Vineeta Sharma verdict stands on the premise that the intent of Section 6 of the Act as
amended by the 2005 amendment, was to neither confers its benefits to female successors
prospectively nor for that matter retrospectively, but it was to confer benefits retroactively.
While explaining the concept of retroactive application vis-à-vis the 2005 amendment, it was held that the 2005 amendment makes available to female successors, the benefit of succession on par with that of her male counterparts based on an antecedent event, i.e., her birth. Furthermore, the court also remained cognizant that under the Act, a thin line must be drawn between the right to claim a share as against the extent of the share.
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In the Vineeta Sharma judgement, the Apex Court has held that because of the express language of Section 6(1)(a), the requirement for a female successor to claim coparcenary rights is not at all dependent on the predecessor coparcener being alive as on the date the 2005 amendment comes into force. The intention of Section 6 of the Amended Act is to boost the nature of the female successor’s right to succession from that of obstructed to unobstructed heritage. The only qualifying factors to claim the benefits of succession under the 2005 amendment is firstly birth and secondly, being alive as on the 2005 amendment coming into force.
CONCLUSION
The end effect of this latest verdict is no doubt an excellent development in the right direction, it, on the contrary, emphasises the paralysing result of women’s financial security by such belated outcomes and on the real estate economy, if real estate transactions are frequently subject to such fluctuations in law. The real repercussion can be well understood if we peep into the lives of those several women who were entitled to share in the property but could not claim their rights and had to face unnecessary financial loss. But on the other hand, we also have another set of people who stood over the principles of the Prakash v. Phulavati verdict and created thirty party interests in coparcenary property after it was partitioned according to Section 6 of the Unamended Act. This judgement exposed the third-party interests making them vulnerable to litigation and on the same page provided justice overdue to the women who are the intended beneficiaries of this law.
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