As we take stock of the various pro-women rulings pronounced by the Supreme Court in 2018, and there are many, one which stands out and has far reaching impact upon the inheritance rights of Hindu women, is the one pronounced by Their Lordships Justices A.K. Sikri and Ashok Bhushan at the beginning of the year, i.e. on February 1, 2018.
Unfortunately it did not get the publicity it deserved as it was eclipsed by many other seemingly more prominent cases waiting in queue before various Constitutional benches to be decided as the year unfolded — the Sabarimala case, the adultery case, decriminalisation of homosexuality, to name a few. But this judgement needs to be discussed in detail so that misconceptions surrounding Hindu women’s right to property can be dispelled.
The judgement, Danamma vs. Amar [2018 (1) SCALE 657], penned by Justice Sikri, relies upon a famous quote by Jurist Roscoe Pound to clearly explain the way Hindu Law has evolved over the years to remove the discrimination against daughters prevalent in the Hindu Undivided Family (HUF): “The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “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”.
The Judges finally and unambiguously clarified the legal position governing rights of Hindu daughters in the HUF property and held:
The Amendment Act of 2005 is applicable to daughters of Hindu coparceners (joint property holders) on the date on which the Act came into force.
A daughter becomes a coparcener by birth in the same manner as a son.
The Court was addressing the following two issues that were raised in this litigation namely:
Whether, the daughters can be denied their share in their father’s property merely on the ground that they were born prior to the enactment of the Hindu Succession Act, 1956 (which awarded rights to a daughter for the first time)?
Whether, with the passing of Hindu Succession (Amendment) Act, 2005, the daughters became 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?
The issue, whether the right to inherit property is limited only to daughters born after September 9, 2005 when Amendment Act came into force, had already been decided by the Supreme Court in Prakash vs. Phulavati [(2016) 2 SCC 36], wherein it was held that the rights under the amendment are applicable to living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born. However, if the property had already been partitioned before December 20, 2004, it will remain unaffected and the issue of redistributing the property as per the amended Act does not arise, since the Act is prospective and not retrospective.
The court commented that the law relating to the HUF property has undergone unprecedented changes in response to the growing demand by women to an equal share in the family property. The changes were made on the touchstone of equality, to remove the perceived disability and prejudice to which a daughter was subjected.
The status conferred upon sons under the old Hindu Law was to treat them as coparceners since their birth and they became joint holders in the family property. After the Act was amended in 2005 the same position was conferred upon daughters and they too became coparceners since birth. The court clarified that it is the factum of birth in a coparcenary that creates the right. Therefore daughters living on the date when the Act came into force in 2005 have become coparceners by virtue of birth.
In this particular case, a Partition suit was filed by the grandson (Amar) a year after the death of the coparcener, Gurulingappa in 2001, claiming one fifth of the share in the property. Gurulingappa had died leaving behind two sons (Arunkumar and Vijay) and two daughters (Danamma and Mahananda). Amar was the son of Arunkumar. He had two sisters — Sheetal and Triveni.
Sumitra, the wife of Gurulingappa, his father Arunkumar, and Amar’s sisters did not contest his claim. But the two aunts — Danamma and Mahananda claimed their share and the uncle Vijay claimed half the share of the property.
The suit was decreed in 2007 by which time the grandmother Sumitra as well as his father Arunkumar had expired. So the trial court awarded half the property to Vijay and the rest was given equally to Amar, his mother and his sisters. The two aunts Danamma and Mahananda were denied any share on the ground that they were born before the Hindu Succession Act came into force. Since at that time daughters could not claim any share in the family property, the court held that they are not entitled to a share.
The two aunts appealed to the Karnataka High Court which upheld the order of the lower court. The review petition filed by them was also dismissed. But with grit and determination they approached the Supreme Court for a final verdict in their favour in 2018.
The Supreme Court held that the daughters of the coparceners became coparceners when Amendment Act of 2005 came into force, along with the two brothers Arunkumar and Vijay and hence they were entitled to one fifth of the share in the property (a share for the mother Sumitra and a share each for the four siblings). The share of Amar would be 1/25th. This calculation was arrived at based on the fact that he became an equal sharer along with his parents and the two sisters.
So from his original claim of one-fifth, reduced to one-eight by the trial court, was finally reduced to 1/25th, by the apex court.
Though the judgement relies on the 2016 ruling, it goes beyond it. In Prakash it was held that the amended Act becomes applicable if the coparcener was living at the time when the Act came into effect. But the present judgement clarifies that even if the coparcener had expired, if the claim of the survivors had not been settled, the Court is bound to take notice of the fact that daughters have become equal sharers of the property, when deciding the matter.
It is indeed shocking that the judgement of the lower court pronounced in 2007 and the judgement of the Karnataka High Court pronounced in 2012 failed to take note of the changed situation under the Hindu Succession Act after the amendment of 2005. Rather than any ambiguity in the wording of the amended Act, it is the deep-rooted bias against women that prevails both in our society and in our courts that is responsible for this state of affairs. It is still presumed that upon marriage a daughter loses her right to the parental property because she is given dowry and “sent away”. Kudos to the two women who had to fight for 16 long years to get justice. The writer is a feminist legal scholar and women’s rights lawyer based in Mumbai