Lakshmi 10 October 2020

Sc judgement on daughter's coparcenary

There was given a recent judgement by Supreme Court upholding the daughters coparcenary right in family property.... What about the situation of Dayabhaga school of law which prevails in West Bengal and Assam where there is no property rights to coparcenar's children when the father is alive.

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Sudiksha Gupta 13 October 2020

Dear Ma’am,

On 11 August 2020, a three-judge Bench of the Hon’ble Supreme Court delivered a landmark ruling in Vineeta Sharma v Rakesh Sharma and Ors, Civil Appeal No 32601 of 2018 (“Vineeta”), affirming the equal rights of daughters to coparcenary property. Most significantly, the Hon’ble Apex Court has clarified that irrespective of a coparcener father being alive or not on or before the Hindu Succession (Amendment) Act, 2005 (“2005 Amendment”), a daughter would be entitled to a share in coparcenary property in the same manner as a son simply by virtue of: (i) her birth; and (ii) her being alive as on the date of coming into force of the 2005 Amendment.

A detailed analysis and answer to your question is as follows:

The Apex Court first delved into the applicability of different schools of Hindu law, ie, (i) the Mitakshara system which is followed in most parts of India (under the Mithila, Benares, Bombay and Dravida sub-schools) except Bengal; (ii) the Dayabhaga system which is followed primarily in Bengal; and (iii) the Marumakkatayam, Aliyasantana and Nambudiri systems which govern certain areas of South India.

The Court also duly quoted the major differences between the Mitakshara and Dayabhaga systems which were previously highlighted in State of Maharashtra v Narayan Rao Sham Rao Deshmukh, (1985) 2 SCC 321. Under the Mitakshara system, there is: (i) community of ownership; and (ii) unity of possession of joint family property between all the members of the coparcenary. However, in a coparcenary governed by the Dayabhaga school: (i) there is no unity of ownership of coparcenary property between members; (ii) every coparcener takes a defined share in the property and he is the owner of such share; (iii) there is unity of possession; and (iv) the share does not fluctuate due to births and deaths. Thus, under Dayabhaga law, the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family.

Regards,

Sudiksha Gupta