Hindu Succession Act – Daughters Get Equal Coparency Rights As The Sons If The Father Died Before The 2005 Amendment: Odisha High Court

The Odisha High Court has reaffirmed daughters’ right to inherit ancestral property based on their equal coparcenary rights under the Hindu Succession (Amendment) Act, 2005, regardless of the date of the passing of their fathers:

Following the Supreme Court’s historic ruling in Vineeta Sharma v. Rakesh Sharma & Ors., a Division Bench of Justices Bidyut Ranjan Sarangi and Murahari Sri Raman held that – The amendment is that even in a joint family that follows Mitakshara law, a coparcener’s daughter is made as good as a coparcener as a son.” She has the same rights to the coparcenary property as if she had been a son. She has the right to protest for her portion of the joint family property. She has the same obligations and limitations as a son.”

In Vineeta Sharma (supra), the Supreme Court said that a daughter should stay as coparcener throughout her life, regardless of whether her father was alive when the legislation was revised in 2005 or not, emphasising that the rule is retroactive.

Background of the case:

Here, in this case, the father of the petitioner died on 19^th March 2005. It is crucial to note that the 2005 amendment to Hindu Succession Act materialized on 9^th September 2005. After her father’s demise, her three brothers got his property mutated to their names under Section 19(1)(c) of the Odisha Land Reforms Act, 1960. These very steps were challenged by the petitioner and her other two sisters before the Sundargarh Sub-Collector.

It was directed by the Tahsildar to record the names of the petitioner alongside her sisters in the “Record of Rights” in addition to their brothers. Moving forward, a fresh RoR was drawn incorporating the names of all six siblings, i.e., the three brothers and three sisters. This is when the petitioner, even though being a daughter, was entitled to have a share in her deceased father’s property.

Thereafter, the aforementioned decision was impugned in the Claims Commission by the private opposite parties stating that in view of the judgments of the Supreme Court of India in the case of Prakash & Ors. V. Phulabati & Ors. Daughters are not entitled to take over properties as Co-parceners. This was made applicable mostly to cases in which the fathers passed away before the amendment of 2005 was made.

By an order dated 04-01-2020, the Claims Commission decided the matter against the petitioner, which happened to be the subject matter of challenge before the High Court in this very Writ Petition.

Observation by the court:

The Court came to observe that the Mitakshara school entitles a son to have a right equal to his father in the joint family property by birth. This means all the male descendants of a Hindu in the lineup till the fourth degree have a right to the property.

The Court observed, “The daughter is not given a right by birth in the joint family property. But in the states of Andhra Pradesh, Tamil Nadu and Maharashtra, the law is amended by inserting Sections 29 A, 29 B and 29 C and in Karnataka by inserting Section 6 A in the Hindu Succession Act, 1956 The Parliament, being inspired by the line of these four states, passed The Hindu Succession (Amendment) Act, 2005 for the whole of India.”

The rights conferred by the amendment made in 2005 were held to be retrospective in nature. Hence, the Court remitted the case back to the Commission for a fresh decision.

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