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Bijal Ajinkya

Bijal Ajinkya is a Partner in the Direct Tax, Private Client and Investment Funds Practice Groups in the Mumbai office.

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Female Coparcener’s Right in Ancestral Property: SC Ruling and Its Impact

The joint Hindu family or Hindu undivided family (HUF) is a structure recognised in Hindu customary law where the family members traditionally shared a common roof and conducted family business together. Property such as cash, securities, investments, business assets and land was jointly held for the benefit of the larger family. The Hindu coparcenary is an institution recognised by the Mitakshara School of Hindu law and is a narrower body than the Hindu joint family and is restricted to a maximum of 4 generations. Traditionally, only a son born (or adopted) in the joint Hindu family was considered a ‘coparcener’, i.e. one who has a share in the joint family property by virtue of his birth in that family.

The Supreme Court (SC) delivered a landmark judgment on 11 August 2020 which has put to rest a long-standing debate on the rights of a Hindu female in joint Hindu family property. 

Concept of Hindu Coparcenary Property 

The joint Hindu family or Hindu undivided family (HUF) is a structure recognised in Hindu customary law where the family members traditionally shared a common roof and conducted family business together. Property such as cash, securities, investments, business assets and land was jointly held for the benefit of the larger family. The Hindu coparcenary is an institution recognised by the Mitakshara School of Hindu law and is a narrower body than the Hindu joint family and is restricted to a maximum of 4 generations. Traditionally, only a son born (or adopted) in the joint Hindu family was considered a ‘coparcener’, i.e. one who has a share in the joint family property by virtue of his birth in that family.

A coparcener’s share in the family property is not fixed and fluctuates with the birth or death of a son in the family. A coparcener may demand partition of coparcenary property, i.e. severance of coparcenary interests, at any point. Wives of sons across various generations are ‘members’ of the joint Hindu family but not coparceners themselves. They cannot demand partition but are entitled to maintenance and can receive a share in the partitioned property as well.  

Legislative Enactments under Hindu Law 

The enactment of the Hindu Succession Act in 1956 (“Hindu Succession Act”) gave due recognition to the traditional existence of coparcenary property and special provisions were made in this regard. 

In 2005, the legislature enacted an amendment to the Hindu Succession Act (“2005 Amendment”) which granted the daughters of a coparcener equal rights as compared to the sons in coparcenary property. This was heralded as a progressive move by the legislature. But there was a grey area in respect of the applicability of the 2005 Amendment to living daughters of male coparceners who had passed away before the 2005 Amendment. The issue was further muddied by conflicting decisions given in recent years by the Supreme Court.

The Supreme Court Ruling

Through its decision delivered on 11 August in Vineeta Sharma v Rakesh Sharma & Others, the Supreme Court has put all doubts in this regard to rest. The Court categorically held that a daughter who was living when the 2005 Amendment was enacted is a coparcener and acquires the same rights as a son in coparcenary property. This is irrespective of whether her father was living or deceased at the time of passing of the 2005 Amendment. It has been clearly stated that by her very birth a daughter, like a son, becomes a coparcener and obtains a right in coparcenary property. 

There are a few situations where this decision will not apply, such as if the family is not governed by the Mitakshara School of Hindu Law, or the female coparcener passed away before to the 2005 Amendment, or the coparcenary property was transferred, willed away or partitioned before 2005. In the case of partition, it should have taken place by registered deed or by court decree. The Court has held that if a partition or family arrangement/settlement has taken place orally, it must be supported by substantial documentary evidence to be considered binding under the law. This is to ensure that female coparceners are not deprived of their rights through claims of sham partitions.  

Likely Impact of the Decision 

This is a landmark decision which serves to remove a long-standing bastion of inequality between sons and daughters of a Hindu in the matter of inheritance. However, it is likely that the ruling will cause a spate of litigation in respect of claims made by female coparceners and possibly lead to re-opening of partitions and family settlements which have taken place since the 2005 Amendment. 

In respect of the rights of children of female coparceners, the law is not yet clear. While the Court has stressed on the equality of rights between sons and daughters, the judgement has not touched on this issue. There is also, no clear inference to be drawn in respect of the husband of a female coparcener and whether he will be a member of his wife’s (or wife’s father’s) coparcenary. 

Mitigating the Impact: Recommendations & Way Forward

Joint families which are holding personal or business assets through a HUF may consider partitioning their HUF, either through a total or partial partition. A total partition would entail dissolution of the HUF and distribution of all HUF assets. On the other hand, a partial partition approach may be opted for if one or more coparceners are desirous of receiving their share, or only some of the HUF assets are to be distributed, but the HUF itself is not sought to be done away with. 

In all cases, the partition deed should clearly specify how the division of assets is taking place and should be executed by every coparcener and member in the HUF. The deed must be adequately stamped and registered. The partition must also be acted upon – this can be achieved, for example, by having title deeds updated at the registry, using personal bank account rather than HUF bank account, executing share transfer deeds etc. 

Increasingly, joint Hindu families are moving towards complete dissolution of their HUF by way of a partition deed. This is generally done as part of their overall succession planning, where they desire to segregate ownership amongst children, rather than having all properties in one basket. 

It is interesting to note that the modern Hindu does not religiously follow the old practice of ‘one family, one business and joint property’ and, in fact, does subscribe to the belief that unity amongst family members is better maintained by segregating property, disputes over which has so often been a preventable cause of broken families.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house


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