SC judgement on coparcenary upholds gender equality, but opens doors for more litigation

By: |
August 13, 2020 7:15 AM

To illustrate, while sons could inherit the property irrespective of the ‘living/deceased’ status of their father, daughters could only do so if their father was alive after 2005.

The latest judgment, delivered on Tuesday, addresses this lacuna by observing that daughters would have coparcenary rights even if the coparceners were dead before 2005.The latest judgment, delivered on Tuesday, addresses this lacuna by observing that daughters would have coparcenary rights even if the coparceners were dead before 2005.

Although the Hindu Succession (Amendment) Act, 2005, had accorded coparcenary rights to daughters on equal terms as sons—amending the 1956 Act which did not interfere with the Mitakshara law wherein only male members could be coparceners, thus having a share in the ancestral property by birth—subsequent judgements have dealt with whether the law would apply retrospectively or not. In 2015, in the case of Prakash v Phulwati, a division bench of the Supreme Court ruled that the 2005 amendment could be granted only to the “living daughters of living coparceners” as per the wordings in the amended section, thus implying that only those daughters whose father were alive after the cut-off date of September 2005, would be entitled to benefits under the amendment. A 2018 judgement pushed the date further to 2001, but the cut-off was soon reverted to 2005. To illustrate, while sons could inherit the property irrespective of the ‘living/deceased’ status of their father, daughters could only do so if their father was alive after 2005. This was done so that coparcenary cases already settled do not get reopened.

The latest judgment, delivered on Tuesday, addresses this lacuna by observing that daughters would have coparcenary rights even if the coparceners were dead before 2005. The law makes it clear that it shall not invalidate any disposition or alienation, including any partition or testamentary disposition of the property, which had taken place before December 20, 2004, but the latest judgment leaves room for the opening of cases where such context is absent or cases which have been settled based on the 2005 cut-off. The SC has asked the HC to show expediency, by disposing off such cases within six months. Given it will open a lot more litigation, courts have their task cut out. However, this is one step forward in the long march toward gender equality.

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