THE HINDU WOMAN’S RIGHT IN COPARACENARY PROPERTY: A CRITICAL ANALYSIS

WITH REFERENCE TO THE RECENT VINEETA SHARMA VS RAKESH SHARMA

JUDGMENT

-MANISH KUMAR*

INTRODUCTION

Indian women’s fight for an equal right in property has been a protracted one, spanning over thousands of
years. In a country where women are worshipped as goddesses such as Durga, Laxmi, and Saraswati,
who represent power, wealth, and wisdom, it remains one of the biggest ironies that their mortal forms
have to struggle for basic rights such as safety, property, and education. This has resulted from
discrimination that women have faced over the years and which has been entrenched in society due to
the patriarchal nature of laws and the men who make such laws.

Manu writes in his Manusmriti: "Her father protects her in childhood, her husband protects her in youth
and her sons protect her in old age; a woman is never fit for independence." 1 Moreover, as the Sanskrit
saying goes, "Na stri swatantramarhati-'Swatrantam Na Kachit Striyah"2 which meant that women were
unfit for any independent existence. Also, a woman was considered an object to be preserved by her
male guardians.

Women were either completely excluded from inheriting ancestral property or, if granted, their proportion
of the share in the property was far less than that of their male counterparts. Although the ancient
scriptures never mention property for a single woman, she was entitled to possess a limited range of
property when she got married, which included movable property such as clothing, jewellry, utensils, or
livestock called stridhan.

Immovable property, such as landed property, was also given as stridhan in some rare instances.
Nevertheless, a woman never attained absolute ownership over her stridhan because, as taught by the
Manusmriti, a wife, along with her property, belongs to her husband. So the little property which was
accorded to her was also taken over by the husband. The concept of stridhan underwent many changes
subsequently, as will be discussed in this article.

Restrictions on the property rights of Hindu women have changed throughout history. The last century
has seen a paradigm shift with regards to the property rights of women in India. Legislations such as the

*
2nd year BA – LLB(Hons) student at National University of Study and Research in Law, Ranchi. Authored on 5th Dec, 2020
1
Manu IX.3: Manusmriti: The Laws of Manu, in Sacred Books of the East 56 (G. Buhler trans. 1886) (available at
http://www.hinduwebsite.com/sacredscripts/laws_of_manu.htm).
2
A.M. Bhattacharjee, Hindu Law and the Constitution 120 (2d ed., E.L. House 1994).

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Hindu Women's Right to Property Act, 19373, the Hindu succession act, 19564 and the Hindu Succession
(Amendment) Act, 20055 have brought in significant changes for the welfare of women, i.e., bestowing
them with the right to inherit the ancestral property. As with previous legislations, there was a flaw with
the Hindu Succession (Amendment) Act, 2005 6 which was rectified by a recent judgment in Vineeta
Sharma vs. Rakesh Sharma, 20207.

The Author, through this article, intends to elucidate the right of Hindu women in coparcenary property
and explain the other nuances related to it, starting from women’s status in Ancient India up until now. A
precise and objective method has been used by providing a timeline of the development of events relating
to women’s coparcenary rights over thousands of years. Also, the article provides fine details of the
modern developments in woman’s right to property, such as the Hindu woman’s right to property act,
19378 and subsequent legislations in the Hindu Succession act, 1956 9 and the Hindu Succession
(Amendment) Act, 200510, while also providing a food for thought on why the society needs to change
intrinsically from its existing patriarchal nature.

WHAT IS COPARCENORY PROPERTY IN THE HINDU LAW?

The Supreme Court in Rohit Chauhan vs. Surinder Singh, 201311 referred to coparcenary property as
“the property which consists of ancestral property and a coparcener would mean a person who shares
equally with others in inheritance in the estate of common ancestor”.

The concept of coparcenary has been a quintessential part of ancient Hindu jurisprudence and is an
essential feature of Hindu law. The Hindu laws and provisions regarding the property and its rights have
always been male – oriented. There existed a lot of deviations and variations before the inception of the
Hindu Succession Act, 1956, as people were governed by customary laws originated through various
schools of thoughts, that varied in different regions and many of those differentiated on the Caste basis.

Two Major Schools of Hindu Law Are -

1. The Mitakshara school

The Mitakshara School was followed across India, barring parts of Assam and West Bengal. It suggested
that inheritance be practised according to the concept of propinquity, which implies the relationship of

3
Hindu Women’s right to property Act No. XVIII of 1937.
4
The Hindu succession act, 1956 Act No. 30 of 1956
5
India Code Act No. 39 of 2005.
6
The Hindu Succession (Amendment) Act, 2005. no. 39 of 2005
7
Vineeta Sharma vs Rakesh Sharma, 2020 MANU/SC/0582/2020
8
Hindu Women’s right to property Act No. XVIII of 1937.
9
The Hindu succession act, 1956 Act No. 30 of 1956.
10
The Hindu succession (amendment) Act, 2005. no. 39 of 2005
11
Rohit Chauhan vs. Surinder Singh (2013) MANU/SC/0692/2013

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blood in order of closeness. The 1956 Hindu Succession Act adopted the same idea as well. The paternal
property was allocated on the basis of the rule of possession by birth, which implied that the sons of the
family had sole access by birth to the property of the joint family while the daughters were barred from
possessing any such rights. This rule of allocation of parental property by birth was known as the doctrine
of survivorship which meant that the property should be allocated to the inheritor, which would mean that
the family's survival could continue in the future. No person has a definite share as the shares keep
fluctuating due to births and deaths in the family. So, there is a unity of ownership. The Mitakshara
coparcenary law played its part in entrenching inequality between both the genders, which was against
the fundamental right of equality as provided by the constitution of India 12.

2. The Dayabhaga School

The Dayabhaga School was followed in Assam and West Bengal. Under this school of law, inheritance
was based on the principle of religious reward or spiritual benefit. On the Basis of the doctrine of
oblations, the right to inherit the property would lie with the person conferring more spiritual benefit. The
females could inherit the property, and the sons of the family did not exclusively own birthright to the
property under this school of law. The sons were not vested with a right to ancestral property by birth, and
their right only arose after the death of the Karta, which stood as the ultimate head of the family. The sons
inherit the property as heirs and not as survivors.

A TIMELINE OF DEVELOPMENT OF WOMEN’S PROPERTY RIGHTS

The struggle of women to have a say in coparcenary property has been a prolonged one spanning
thousands of years and remains ongoing. The author, through this section, tries to objectively analyze the
events and developments that have led to a change in the status of women’s rights in coparcenary
property over the years.

Since the very beginning, the concept and the characteristics as to what Stridhan is, has been a subject
of controversy. As mentioned earlier, according to Yagnavalyka "what was given to a woman by her
father, mother, her husband or her brother or received by her at the nuptial fire or presented on her
supersession and the like is denominated women's property" 13.

The original version of the commentary of Yajnavalkya was interpreted by Vijnaneshwara. Vijnaneshwara
was the first among the ancient lawgivers to interpret stridhan in broader terms to include property
acquired by inheritance and by share or purchase. However, other smritikaras opposed such an idea, and
finally, Manusmriti, which is considered the first and the main source of Hindu law, dictated that women
were unable to own such property as they were inferior to men. The two schools of Hindu law, namely the

12
Mitakshara, II, 175.
13
Yagnavlkya, II, 143.

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Mitakhshara and the Dayabhaga schools, upheld succession laws of Manusmriti and women remained as
secondary owners of the landed property until the beginning of the Hindu Women's Right to Property Act
(1937).14

The colonial rulers in India in the eighteenth and nineteenth centuries took the first step by promulgating
this Act to protect, to a limited degree, the right to property of a married woman. Property obtained by
inheritance or share or division was named as the estate of women, and wives of Hindu men or Hindus'
widows were entitled to gain from the property even though the property was not allowed to be alienated.
The rigid Hindu society and customary rules suppressed women for a long time.

Hindu Women's Right to Property Act (1937) 15 was followed by the Hindu Code Bill on the eve of the
independence of India and then finally by the Hindu Succession Act (1956) 16 whereby the modern
lawmakers abolished the concept of women's estate and included such property as stridhan.

Thereby the modern Hindu succession laws came out of the rigid rules of male – dominated succession
rules of Manusmriti and adopted Vijnaneshwara's interpretation of the extended concept of stridhan.
However, even though the modern Hindu succession laws gave a secured position to the Hindu wives
and widows over the property of their husband or the property belonging to their in-laws in case of a
predeceased son's widow, the question of unmarried girls' right to partition of the dwelling house or the
right of residency of the married daughter in the ancestral house remained unanswered.

The task of ending this thousands-year-old tradition alienating women from property inheritance was
taken up by the 174th Law Commission. It found that in the economic and social sphere, social justice
demands that a woman be treated fairly. "The exclusion of daughters from participating in coparcenary
property ownership merely because of their sex is unjust."17 The law commission took a revolutionary
step by recommending changes in the ancient succession laws of Mitakhshara and Dayabhaga and
thereby amending the existing Hindu Succession Act (1956) to give an equal share to Hindu women in
their ancestral properties.

It was nearly fifty years after the inception of the Hindu Succession Act (1956) that these questions were
solved in the Hindu Succession (Amendment) Act (2005), under which section 6 was amended. The rule
of survivorship was abrogated, and daughters were recognized as coparceners. However, the 2005
amendment had some flaws. It raised pertinent questions such as – could the women whose father had
died before the date of enactment of the amendment act, i.e., 9th September, 2005, claim a right in
ancestral property.

14
Hindu Women’s right to property Act No. XVIII of 1937.
15
Hindu Women’s right to property Act No. XVIII of 1937.
16
The Hindu succession (amendment) Act, 2005. no. 39 of 2005
17
174th law commission report, 2000

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In Prakash vs. Phulwati (2016)18, the bench of Justice Anil Dave and Justice A.K Goyal held that it was a
mandatory requirement that the father should be alive on the date of the amendment for the daughter to
claim her right and that the right would pass on from a living coparcener to a living daughter.

Two years later in Danamma vs. Amar (2018)19, a bench of Justice Sikri and Justice Ashok Bhushan held
that even if the father was not alive on the date of the amendment or if he died before the date of the
amendment, the daughter could claim her right in the property.

Since both the cases had conflicting judgments, the matter was taken up by a larger three – judge bench
of Justice Arun Mishra, Justice Abdul Nazeer, and Justice M.R Shah in the case of Vineeta Sharma vs.
Rakesh Sharma (2020)20. It was held that a women’s right to ancestral property is equal to the right of the
sons which has been accorded to them by birth and that the father is alive on the date of amendment or
not does not affect a woman’s right to ancestral property.

HINDU SUCCESSION ACT, 1956

The Hindu Succession Act (1956) was adopted for Hindus in Free India based on the Hindu Code Bill, a
uniform succession statute, and finally gave a death blow to the ancient tradition of prohibiting women
from inheriting landed property from male heirs. The definition of women's estate was gradually scrapped
with this Act, and the importance of stridhan was extended by including landed property and other
movable and immovable assets.

Section 14 of the law, which specified that any property a Hindu woman receives after June 17, 1956, will
be her absolute property, was transformed into Stridhan. The Hindu Succession Act, 1956 defines
"property" and expounds that it includes both immovable and movable property, that she receives as a
gift, or through inheritance or maintenance, or that she acquires by own skill or by a partition, purchase,
prescription, etc.

Section 14(1) of the Hindu Succession Act sets forth the definition of “Property” and expounds that the
word “property” includes all the types of property that were outlined in the ancient text Vijnaneshwar,
which divided Stridhan into nine types. However, even the Hindu Succession Act did not award women
full ownership of land, as Section 14(2) preserves the privilege of any person or court to give a woman a
limited estate in the same manner as any other person may be granted a limited estate.

Thus, there was a retrospective or backwards-looking glance at Section 14. Two preconditions need to be
fulfilled to transform an existing female property into Stridhan or absolute property: 1) ownership of the

18
Prakash vs Phulwati (2016) MANU/SC/1241/2015
19
Danamma vs. Amar (2018) MANU/SC/0064/2018
20
Vineeta Sharma vs. Rakesh Sharma (2020) MANU/SC/0582/2020

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property must vest in it and ownership is not limited; and 2) when the Act comes into operation, she must
own the property. It also keeps quiet in cases involving the property of the deceased spouse of a woman.
The property cannot become her absolute property, except for the right of maintenance.

Although the Hindu succession act was a step in the right direction, it had some major flaws, which were
detrimental to the cause of achieving gender equality in property rights. The issue of female inheritance
was examined in case of inheritance with limitation clause. Several other clauses continued the age-old
discrimination of male and female heirs. According to Section 15 of the Hindu Succession Act (1956) 21,
the daughter-in-law inherits only when she is a widow. Therefore when her husband is alive, she will not
inherit her proper share of her father-in-land. Law’s The Hindu Succession Act (1956) removes married
daughters as well as a share of partition from the right of residence in the dwelling-house. Here again, the
women's succession debate begins. Although the distinction between stridhan and women's estate was
abolished by this Act, the problem of partition and right of residence in the dwelling house rendered the
age-old practice of discriminating against women's children more exposed.

HINDU SUCCESSION ACT, 2005 (AMENDMENT) ACT

The Hindu Succession (Amendment) Act 2005 22 stands as one of the most progressive and revolutionary
legislations in the Indian Legal history which was enacted to expand the rights of women and daughters
of the family and brought them at par with the male members. The Hindu Succession (amendment) Act,
2005 followed the suggestions provided by the 174th law commission report which assumed the task of
terminating this thousands-year-old tradition of alienating woman from inheriting land. It found that in the
economic and social sphere, social justice demands that a woman be treated fairly. Moreover, it set forth
that excluding daughters from participating in coparcenary property ownership solely on the basis of their
sex is unreasonable.23. Also, the family daughters, whether married or unmarried, received, among other
things, coparcenary rights and liabilities equal to a son, which meant that in addition to property shares
and other rights, the daughters would also be responsible for the debts and losses.

Before the amendment, the Hindu Succession act, 1956, identified coparcener as the male lineal
descendant of the same ancestor. No daughter, wife or widow qualified, only people from male lineage
could qualify to claim a right in coparcenary property. This is also known as the survivorship rule which
was provided under section 6 of the Hindu Succession Act. The amendment cancelled out section 6 and
introduced interstate and testamentary succession. The fundamental principles of the Hindu Coparcenary
Law were challenged by Section 6 of the amendment. The amendment bestowed on the Daughters, both
married and unmarried, equal rights over the coparcenary as the sons of the family. Moreover, the

21
The Hindu succession (amendment) Act, 2005. no. 39 of 2005 Act No. 30 of 1956.
22
The Hindu succession (amendment) Act, 2005. no. 39 of 2005
23
174th law commission report, 2000

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females of the family could now act as the Karta of the family which they couldn’t previously do. Any
estate inherently entitled to it would be under co-ownership and would not be disposed of by testamentary
agreement.

Another significant reform was the removal of section 23 of the Act, which apparently discriminated
against the female heirs to seek her share in the dwelling house that the intestate left before the male
heir. This is the most evident disparity created by the Hindu Succession Act before 2005, because
women's right had been limited to living in that house if they were unmarried, deserted, divorced, or a
widow. This way, they were left to the whims and fancies of the male members.

Section 24 expounded that the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-
deceased or the widow of a brother who are related to an intestate shall not be entitled to succeed to the
property of the intestate as such widow, if she had re-married on the date the succession. This was an
obvious discrimination as other relations such as widow of the intestate himself was never divested with
the right to inherit the intestate’s property even after she remarried. This led to the omission of section 24.
Further, Section 30 was amended to substitute “disposed by him” with “disposed by him or her” to make
the law gender – neutral.

The amendment also fell short in some ways, as there were provisions that have thus far not brought
equity, for instance, after her death all her goes to the family of husband’s side. The act also raised a
pertinent question that – could the women whose father had died before the date of enactment of the
amendment act, i.e. 9th September, 2005, claim a right in ancestral property?

In Prakash vs Phulwati (2016)24, the bench of Justice Anil Dave and Justice A.K Goyal held that it was a
mandatory requirement that the father should be alive on the date of the amendment for the daughter to
claim her right and that the right would pass on from a living coparcener to a living daughter.

Two years later in Danamma vs. Amar (2018)25, a bench of Justice Sikri and Justice Ashok Bhushan held
that even if the father was not alive on the date of the amendment or if he died before the date of
amendment, the daughter could claim her right in the property.

Since, both the cases had conflicting judgments, the matter was taken up by a larger three – judge bench
of Justice Arun Mishra, Justice Abdul Nazeer, 174th law commission report, 2000 and Justice M.R Shah in
the case of Vineeta Sharma vs. Rakesh Sharma (2020)26.

24
Prakash vs Phulwati MANU/SC/1241/2015
25
Danamma vs. Amar MANU/SC/0064/2018
26
Vineeta Sharma vs. Rakesh Sharma MANU/SC/0582/2020

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 VINEETA SHARMA VS RAKESH SHARMA

“Daughters are to have equal rights to inheritance of coparcenary property like sons and they shall not be
deprived of their right to equality. The judgment of 2005 on coparcenary property for daughters will have a
retrospective effect”27. A three-judge Supreme Court bench in Vineeta Sharma v Rakesh Sharma
addressed opposing opinions in Prakash vs Phulwati (2016) and Danamma vs. Amar (2018) on the 2005
amendment. The core issue dealt with in Vineeta Sharma v Rakesh Sharma lying before the court was
that even if the father was not alive on the date of the 2005 amendment; could the daughters receive
coparcenary rights? The bench comprising of Justices Arun Mishra, S Nazeer and M R Shah claimed that
the provisions in substituted Section 6 of the Hindu Succession Act, 1956, confer on the daughter,
coparcenary rights in the same way as a son and with the same rights and responsibilities, born before or
after the amendment,.

This decision cleared the air and expounded that the judgment would have a retrospective effect, which
means that the pending cases on this issue must be resolved within six months. Daughters who were
born prior to the 2005 amendment may claim their right under Section 6 (1) of the Hindu Succession Act,
1956. According to the disposition, alienation, partition, or testamentary disposition that took place on
December 20, 2004, this judgment made it clear, that the right in coparcenary property is by birth and the
requisite condition of the death of the father after the 2005 amendment is not a mandatory one.

The court through this judgment has also made oral partition impermissible as prior to the 2005
amendment, the court allowed oral partition, and the burden of proof lied on the person who claimed for
partition. Section 6(5) of the Post-Amendment Hindu Succession Act, 1956, specifies that a division can
take place only through a court hearing or a recorded deed. At times, an oral partition can be set up by
fraud schemes that can deprive daughters of their rights. Therefore it was explicitly mentioned that under
Section 6 (5) of the Hindu Succession Act, 1956, oral partitions would not be permissible.

In certain instances, oral evidence is admissible if it is buttressed by public documents as stipulated by

the Bench. Moreover, it was also argued by the bench that the statutory partition fiction created by
Section 6 of the Hindu Succession Act of 1956 did not cause the coparcenary's actual partition. Cases in
which this kind of partition took place before the amendment, the new provision must be actuated on the
basis of the amendment.

27
Vineeta Sharma vs. Rakesh Sharma MANU/SC/0582/2020

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 CONCLUSION

Research reveals that ownership of assets has a huge impact on a woman’s life. Among women who
owned no property, i.e., owning neither land nor house, 49% experienced physical violence and 84%
experienced psychological violence. In comparison to those, who owned both land and house reported
dramatically less physical as well as psychological violence, i.e., 7% and 16% respectively. Women
account for over 42 per cent of the agricultural labour force in the country revealing increased
feminization of agriculture, but a startling stat reveals they still own less than 2 per cent of its farmland. 28

Various religious and personal laws were formulated as per each religion’s necessity and those personal
laws have always been discriminatory towards women. Religion is a matter of faith; faith is a matter of
conscience, and the autonomy to exercise conscience forms the basis of modern Civilization. In a country
which has a secular fabric, every citizen has a right to be governed by secular laws in personal matters,
and the state has a duty to provide an optional secular code of family laws.

There isn’t an iota of doubt that India through successive legislations has come a long way in
guaranteeing property right to women on par with men. The biggest hindrance that now exists is enforcing
the laws and changing the nature of the Indian society which is so patriarchal and continues to deprive
women of their rights.

Pre – existing Systematic Social barriers are preventing women from claiming their equal share to
property. In Rajasthan, traditions such as 'Haq tyag' or the sacrificing of rights is prevalent, involving
women giving up their claims to ancestral lands. While it is meant to be voluntary, women comply with the
tradition of avoiding stigma from their families and other members of society so that ties between them
and their families are not tarnished, which means it’s a clear case of coercion rather than the voluntary
sacrifice of rights.

There are numerous instances in other parts of the nation where women literally give their share of the
property to their brothers because it is supposed to be symbolic of a female sacrificial trait. Behind social
evils such as sati, dowry deaths, the abandonment of widows and prostitution, there exist
underlying economic motives. Witch-hunting, a practice well heard of and widespread in tribal areas is
primarily connected to land as well.

So, In Author’s opinion, the way ahead is making women economically self-sufficient so that they can
assert themselves and tackle social barriers that curtail women’s property rights. Bestowing the woman
with an equal share in property directly challenges the very basis of patriarchal institutions that seek to

28
Panda and Agarwal, Marital Violence, Human Development and Women’s property status of women in India, ELSEVIER, vol. 33,
no. 5, pp. 823-850, 2005

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suppress every facet of a woman’s life and make them subservient to men. The opposition to granting
equal property rights to women has been high due to the value of land in the Indian society. Although
legislations have been in a positive direction, now a larger barrier is the inability of legislators and people
implementing these laws to break out of the patriarchal mindset, which is predominant in Indian society.

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