Important Judgments on Property Rights of Women/Daughters in India

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March 19, 2018

The law governing property rights of women in India underwent a significant change in 2005 vide the Hindu Succession (Amendment) Act, 2005. Prior to the amendment women as daughters, wives or widows had no claim in the ancestral property of their family. Coparcenary property was earlier confined to the male members of the family only. The amendment Act primarily reflects the recommendations of the Law Commission of India in its 174th Report- Property Rights of Women: Proposed Reform under the Hindu Law.

Post Amendment Act of 2005 the dynamics of share in coparcenary property has conferred equal rights to women and daughters in the Hindu Mitakshara coparcenary property.

The judicial opinion also help in contouring the rights. Some important cases in this regime are being discussed below:

Danamma @ Suman Surpur & Anr. v. Amar & ors.

In this recent case taken up by Two-Judge Bench of the Supreme Court in February this year, the Court categorically expressed its view on two legal propositions governing rights of daughters on coparcenary property. Firstly, the Court held that the Amendment Act of 2005 is applicable to living daughters of living coparceners on the date on which the Act came into force. Secondly, in the case the Court has stated that daughter become coparcener by birth in the same manner as son.

The two intrinsic issues raised in the case were:

  • Whether, the appellants (daughters) of a coparcener could be denied their share on the ground that they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners?
  • Whether, with the passing of Hindu Succession (Amendment) Act, 2005, the appellants would become coparcener “by birth” in their “own right in the same manner as the son” and are, therefore, entitled to equal share as that of a son?

Whether the right would be conferred only upon the daughters who were born after September 9, 2005 i.e. when Amendment Act came into force– The said issue was settled by the Supreme Court in the case of Prakash & Ors. v. Phulavati & Ors.[1]wherein it was held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected.

Other noteworthy observations made by Two-Judge Bench of the Supreme Court are as under: 

  • That the law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener.
  • That the Amendment act stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition.
  • That these changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.
  • That the fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Poundthat “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”
  • That Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth.
  • That both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth.It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth.
  • That the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

The entire case can be accessed here.

Prakash & Ors. v. Phulavati & Ors.[1]

In this case, the Supreme Court held that the text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.

The entire case can be accessed here.

Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.[2]

In this case, the Supreme Court held that the rights of daughters in coparcenary property as per the amended Section 6 of Hindu Succession Act are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

The entire case can be accessed here.

S.R. Batra & Anr. v. Smt. Taruna Batra

In this case, the Supreme Court expounded the definition of a “shraed household” under the Domestic Violence Act. The Supreme Court in the case stated that the wife is only entitled to claim a right to residence in a shared household, and a `shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.

The entire case can be accessed here.

 

 

 

[1] (2016) 2 SCC 36

[2] (2011) 9 SCC 788