Injustice To Daughters In Hindu Shastric Law Done Away With: SC Explains The Impact Of Hindu Succession (Amendment) Act 2005 [Read Judgment]

In its landmark judgment recognizing the equal rights of daughters in coparcenary property, the Supreme Court has explained the law regarding devolution of coparcenary property and also the impact of 2005 amendment to Hindu Succession Act on daughters' right to it.The bench comprising Justices Arun Mishra, S. Abdul Nazeer and MR Shah, observed that the classic Shastric Hindu law excluded the daughter from being coparcener, and this injustice has been done away with by the 2005 Amendment of the Hindu Succession Act in consonance with the spirit of the Constitution.Justice Mishra who authored the 121 page judgment, begins the discussion with original Hindu Succession Laws and later proceeds by explaining the basic concepts like Joint Hindu Family system, Coparcenary and Coparcenary property.(The following are the relevant excerpts from the judgment.) Two Schools of Hindu Law There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, Bombay school, in Western India. However, certain areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri systems of law Joint Hindu Family A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation.SC on the historic origins of Hindu law."The Hindu branch of dharma is influenced by theological tenets of Vedi Aryans...the basic Hindu law emanates from Vedas and past shruti/smritis" - judgment authored by Justice Arun Mishra on daughters' coparcenary rights pic.twitter.com/HBsOPChoLS— Live Law (@LiveLawIndia) August 11, 2020 Hindu Coparcenary Before 2005 Amendment Before 2005, it included only those persons like sons, grandsons, and great grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great-grandson, and E is a great great-grandson. The coparcenary will be formed up to D, i.e., great grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and great grandsons become coparceners by birth, they acquired an interest in the property. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded. Unobstructed and obstructed heritage In Mitakshara coparcenary, there is unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner's existence. It is only on his death that obstructed heritage takes place. After discussing these basic concepts of Mitakshara law, the Court proceeds to discuss the Hindu Succession Act, 1956 Devolution of Interest In Coparcenary property [Pre 2005 amendment] Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. Section 6 excluded the rule of succession concerning Mitakshara coparcenary property. As per the said provision, interest of a coparcener male Hindu who died after the commencement of Act of 1956, shall be governed by survivorship upon the surviving members of the coparcenary. The exception was provided that if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of such coparcener shall...

Injustice To Daughters In Hindu Shastric Law Done Away With: SC Explains The Impact Of Hindu Succession (Amendment) Act 2005 [Read Judgment]

Ashok Kini

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