Equal Rights Unleashed: Empowering Inheritance by Women

Author: Overseas Indian Desk, at ZEUS Law

The rules governing intestate succession of coparcenary property amongst Hindus are codified in the Hindu Succession Act, 1956 (“HSA”). A person is said to die intestate when he does not leave behind a will. The term coparcenary property is to be understood in the context of ancestral property that is inherited from one’s predecessors as per the rules of Hindu Mitakshara law. Section 6 of HSA that dealt with the devolution/succession of interest/share of a male Hindu in coparcenary property was substituted by a new provision in 2005 vide the Hindu Succession (Amendment) Act, 2005 (“2005 Amendment”).

Prior to the 2005 Amendment, only male members of a Hindu family were recognised as coparceners under Section 6 of HSA. Due to non-recognition of daughters as coparceners, they were excluded from coparcenary property and did not inherit ancestral/Hindu joint family property unlike male members of the same family. However, the 2005 Amendment has brought about significant changes in inheritance laws vis-à-vis Hindu Mitakshara coparcenary property. The intention of the legislature was to give equal inheritance rights to sons and daughters in Hindu Mitakshara coparcenary property. With effect from September 9, 2005, a daughter of a coparcener in a joint Hindu family governed by Mitakshara law, is treated as a coparcener in her own right upon her birth, in the same manner as a son. In essence, the 2005 Amendment has brought the inheritance rights of daughters and sons in Mitakshara coparcenary property at par. Further, the 2005 Amendment does not discriminate between inheritance rights of married and unmarried daughters – both shall be recognised as coparceners in the eyes of law.

An interesting aspect of the interpretation of amended Section 6 of HSA arose in the case of Pravat Chandra Patnaik Others vs. Sarat Chandra Patnaik and Another (2008). Here, it was contended that inheritance rights under amended Section 6 of HSA would only be conferred on daughters born after 2005 and not otherwise. The Orissa High Court stated that this was not the intention of the legislature. Rather, the amended Section 6 recognises a daughter as a coparcener from the year 2005, whenever she may have been born. The Delhi High Court has subsequently reaffirmed this.

These conflicting views were put to rest by a larger bench of Hon’ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma and Others (2020). It was held that the amended section confers inheritance rights on the daughter born even before the amendment came into effect, in the same manner as a son having the same rights and liabilities. Thus, a daughter can claim her rights in the coparcenary property regardless of the date of her birth. The Apex Court further held that a daughter shall also be considered a joint legal heir as a son and can inherit ancestral property equally as male heir, irrespective of whether the father is alive or not on the date of the 2005 Amendment coming into effect.

The declaration in Section 6 that the daughter of a coparcener shall have the same rights and liabilities in the coparcenary property as a son is clear. This right accorded to daughters is absolute, except under two circumstances that are clearly specified in Section 6 of HSA, namely: (i) where the disposition or alienation of the property, including any partition, has taken place before December 20, 2004, or (ii) where testamentary disposition of property has been made before December 20, 2004. If the daughter is wrongfully denied inheritance rights in her father’s coparcenary property, she may indeed challenge the same in the courts of law.

The 2005 Amendment is a beneficial legislation directed towards eliminating the discrimination contained in earlier provisions of HSA, by ensuring that daughters and sons have equal inheritance rights in Hindu Mitakshara coparcenary by birth. By doing so, the legislature has done away with the underlying gender discrimination in classical Hindu succession law as it stood prior to the 2005 amendment.