In India, the sufferance of females for their property rights is continuing since time immemorial. With the arrival of Constitution, the principal law identifying with the property, hereditary rights and legacy concerning Hindus came in 1956 as Hindu Succession Act. It gave many rights in matter of succession, which were hitherto unknown in relation to a woman’s property. The path breaking change came almost after 50 years, when the landmark Hindu Succession (Amendment) Act,2005 came, which finally discussed some persisting gender inequalities, one of the major one was in terms of property rights and inheritance of daughters. It gives uniform rights to females in the Hindu Mitakshara coparcenary property as the males have. But then the confusion arose over applicability of sec 6 i.e. regardless of whether females (daughters) born after 2005 will get advantage as coparceners or it will apply reflectively.

Supreme Court in PRAKASH & ORS. v. PHULAVATI & ORS., said that, if the father passes before the said date 9/9/2005, the living daughter of coparcener would have no right in coparcener’s property. Along these lines, SC had set a clear demarcation of accessibility of right under 2005 amendment yet irregularity emerged, in case of DANAMMA v. AMAR, SC had changed the line set by PRAKASH, saying that, Partition is not complete with passing of preliminary decree & attains finality on final decree. In the event that father had died before 2005 and a previous suit is impending by male coparcener for partition, female coparcener is qualified for the share in the property.

Despite the equality guaranteed by the law of the land, the woman suffered with a lot of inequalities.

The long struggle for property rights and inheritance of daughters finally got settled in this case of VINEETA SHARMA v. RAKESH SHARMA & ORS.

In this case, a dispute arose between the parties concerning the Partition and Coparcenary Rights available to Daughters in Hindu Succession Act. The petitioner got a notice issued on 17.10.2001 for her share in the intestate’s property against her brothers, to which the respondents replied on 13.11.2001 alleging that the suit premises was Hindu Undivided Family property and their father had executed a will in their favor, but was not traceable. The petitioner herein filed partition suit against her brothers. Counterclaiming the suit, the defendants filed separate written statements on identical lines. The present case went to appeal due to the conflicts arose between two previous different decisions both headed by two judge benches.

The issues which emerged in the present dispute was:

• Whether with the passing of Hindu Succession (amendment) act, 2005, the daughter would be treated as a coparcener by birth as that of a son?
• Whether the change to the demonstration giving equivalent rights to daughters to acquire hereditary property would have retrospective impact.

The important principles laid down by the court in this case was:

• The substituted provision contained in Sec 6 of the Hindu Succession act, 1956 confers the same coparcenary rights to daughter as that of son with same rights and liabilities, whether born before or after the amendment.
• The coparcenary rights are by birth irrespective of the father coparcener is alive as on 9.9.2005.
• The legal provision provided in sec 6 of Hindu Succession Act, 1956, passed initially did not laid about real partition or disruption of coparcenary. It was enacted only for the purpose of ascertaining share of deceased coparcener when he survived by a female heir, of Class 1 or male relative of such female. The amendment in 2005 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given equal coparcenary rights as of a son in pending proceedings for final decree or in appeal.
• In view of the explanation to sec 6(5) of the Act, 1956, plea of oral partition cannot be accepted under Registration Act, 1908. However, in extraordinary circumstances where plea of oral partition is corroborated by public documents and partition is eventually revealed in the same manner as if it had affected by a decree of a court, it may be acknowledged. A plea of partition based on oral evidences to be rejected outrightly as it cannot be accepted alone.

Finally, the court, in this case dissented the earlier position of law as established in PRAKASH v. PHULAVATI, and held,

• It becomes unimportant whether the father coparcener was alive at the time the amendment was brought or not.
• The daughter acquires the right of coparcener as that of son, by virtue of the retroactive application of the amendment.
• The daughters cannot be denied of their entitlement to equity presented upon them by the provisions laid down in section 6 of the act.

Thus, the court cleared in the present case that, it is irrespective of the father coparcener, the daughters acquires the coparcener rights as that of sons, by virtue of the retrospective application of the amendment.

Finally, with this decision, females has been granted equality and their right to equality enshrined in the constitution has been preserved in true sense. This landmark judgment not only puts an end to Gender Discrimination but will impact women both economically and symbolically as it aims to provide the real accomplishment which lies in including all daughters especially married daughters as coparceners in joint family property and her liabilities in Mitakshara coparcenary are like liabilities of son.

Apurwa@Samacharline