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Hindu Succession Act, Right to property: Who is a coparcener, what are the rights of coparcener, and other questions answered

Hindu Succession Act, Right to property: The daughter shall remain a coparcener throughout life, and shall inherit equal share of coparcenary rights in share of property like the son, said the Supreme Court on Tuesday

August 12, 2020 / 06:19 PM IST

In a significant judgement, the Supreme Court on Tuesday ruled that daughters will have equal right in the parental property as sons even if their father died before the Hindu Succession (Amendment) Act, 2005, came into force.

A three-judge bench headed by Justice Arun Mishra said: “Daughters must be given equal rights as sons. Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not.”

While reading out the operative part of the judgement, Justice Mishra said daughters have to be given equal share of coparcenary rights in share of property like the son.

The bench also held that rights under the amendment are applicable to living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born.

What does a coparcener mean?

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According to the Hindu Succession Act, 1956, any individual born in a Hindu Undivided Family (HUF) becomes a coparcener by birth. Hence both sons and daughters qualify as coparceners in the family and share equal rights and liabilities over the property.

Earlier only a Son/Son’s son/Son’s son’s son were coparceners. After the 2005 amendment, daughters also became coparceners.

What are the coparcenary rights?

Any coparcener can at any time seek a partition of his/her share. The continuing coparceners can choose to buy out the share of the said coparcener by exercising the right of ‘pre-emption’.

A coparcener can also sell/gift away his interest to another coparcener or even a third party.

In cases of legal necessity/benefit of estate when the karta chooses to alienate joint family property, it can be challenged by the continuing coparceners as not being for legal necessity or benefit of estate within 12 years of knowledge of sale/gift.

Background of the case

According BarandBench, the issue raised before the Supreme Court was whether with the passing of the Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. In other words, whether a daughter could be denied her share on the ground that she were born prior to the enactment of the Act and, therefore, cannot be treated as coparcener?

The court had earlier given two contradictory judgements in two cases — Prakash V. Phulavati (2015) and Danamma @ Suman Surpur vs. Amar (2018). In Prakash V. Phulavati (2015), a bench comprising Justices Anil R. Dave and A.K. Goel had said the rights under the amendment are applicable to living daughters of living coparceners as on September 9, 2005, regardless of when such daughters are born.

It was held that, is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect, as published by LiveLaw.

On the other hand, in the case of Danamma @ Suman Surpur vs. Amar (2018), the bench comprising Justices A.K. Sikri and Ashok Bhushan had held that the share of the father who died in 2001 would also devolve upon his two daughters who would be entitled to a share in the property.
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