Hindu Succession Act | Daughters Get Equal Coparcenary Rights As Sons Even If Father Died Before 2005 Amendment : Orissa High Court
The Orissa High Court has reiterated daughters’ entitlement to inherit ancestral property in view of their equal coparcenary rights, as were conferred on them by the Hindu Succession (Amendment) Act, 2005, irrespective of date of death of their fathers.Following the conclusion reached by the Supreme Court in its landmark decision in Vineeta Sharma v. Rakesh Sharma & Ors., the Division...
The Orissa High Court has reiterated daughters’ entitlement to inherit ancestral property in view of their equal coparcenary rights, as were conferred on them by the Hindu Succession (Amendment) Act, 2005, irrespective of date of death of their fathers.
Following the conclusion reached by the Supreme Court in its landmark decision in Vineeta Sharma v. Rakesh Sharma & Ors., the Division Bench of Justice Bidyut Ranjan Sarangi and Justice Murahari Sri Raman held,
“The amendment is that even in a joint family governed by the Mitakshara law the daughter of a coparcener is made as good a coparcener as a son. She has the same rights in the coparcenary property as she would have had if she had been a son. She has a right to agitate in respect of her share in the joint family property. She carries the same liabilities and disabilities as a son does.”
In Vineeta Sharma (supra) the Apex Court had said that daughter shall remain as coparcener throughout life, regardless of the question as to whether her father was alive when the law was amended in 2005 or not, stressing that the law has a retrospective effect.
The father of the petitioner died on 19.03.2005 (the 2005 amendment to HSA came into effect from 09.09.2005). After the death her father, three brothers of the petitioner got his property mutated in their names under Section 19(1)(c) of the Odisha Land Reforms Act, 1960 which was challenged by the petitioner and her two sisters before the Sub-Collector, Sundargarh.
The Sub-Collector directed the Tahasildar to record the names of the petitioner and her sisters in the Record of Rights (RoR) along with her brothers. Accordingly, a fresh RoR was drawn incorporating the names of three daughters and three sons. Thereby, the petitioner, being the daughter of the deceased, was made entitled to equal share in the said property.
However, the above decision was impugned in the Claims Commission by the private opposite parties stating that in view of the judgments of the Supreme Court in the case of Prakash & Ors. v. Phulabati & Ors. daughters are not entitled to inherit properties as coparceners, especially when their fathers had died before the 2005 amendment.
Based on the aforementioned precedent, the Claims Commission decided the matter against the petitioner by an order dated 04.01.2020, which was the subject matter of challenge before the High Court in this writ petition.
At the outset, the Court noted that the Mitakshara school entitles a son to a right equal to his father in the joint family property by birth. The word “son” includes the son, the son’s son and the son’s son’s son. In other words, all the male descendants of a Hindu in the male line up to the fourth degree of generation are his sons, it added.
“The daughter is not given a right by birth in the joint family property. But in the States of Andhra Pradesh, Tamil Nadu and Maharashtra, the law is amended by inserting Sections 29-A, 29-B and 29-C and in Karnataka by inserting Section 6-A in the Hindu Succession Act, 1956. The Parliament, being inspired by the line of these four States, passed The Hindu Succession (Amendment) Act, 2005 for the whole of India,” the Court observed.
The Court also noted that the Claims Commission particularly relied upon the pronouncements of law made by the Apex Court in Prakash (supra) to come to the conclusion that daughters are not legally entitled to inherit father’s property as coparceners. It was of the considered opinion that the Claims Commission committed an error by denying the coparcenary rights of the petitioner and her sisters. However, it acknowledged that the impugned decision of the Commission was delivered prior to the judgment in Vineeta Sharma (supra).
Therefore, the Court held, a woman will have an equal share in undivided family property as she becomes a coparcener by virtue of her birth.
“A female heir or male relative of such female heir have same rights and liabilities. Thereby, analyzing the amended Section 6 of the Hindu Succession Act, 1956, it was held that since the right is given by birth, it is an antecedent event and the provisions concerning the rights operate on and from the date of commencement of the Amendment Act, 2005,” it highlighted.
Notwithstanding that, as the rights conferred by the 2005 amendment were held to be retrospective in nature, the Court remitted the matter back to the Commission for fresh adjudication of the case having due regard for the position of law as it stands now.
Case Title: Yagnaseni Patel v. The General Manager, Mahanadi Coalfields Ltd. & Ors.
Case No.: W.P.(C) No. 28534 of 2020
Date of Judgment: June 22, 2023
Counsel for the Petitioner: M/s P.K. Mohapatra, S.K. Jethy, S. Mohanty and A. Mohapatra, Advocates
Counsel for the Respondents: M/s D. Mohanty, A. Mishra, B.P. Panda and D. Behera, Advocates; Mr. A. Khandal, Advocate; Mr. S.K. Mishra, Advocate
Citation: 2023 LiveLaw (Ori) 76