Equal Property Rights vs.

Customary Practice and Relationship among

Siblings: A Contemporary Approach

INTRODUCTION

As per the ancient Hindu customs and scripture's, a Hindu woman's right to own and possess
property was majorly limited to the proceeds that were received at the time of marriage, more so
in the capacity of a married woman. As per the ancient text written called Manusmriti written by
legal scholar Manu1- “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.”. Although the
woman was not explicitly excluded from holding and inheriting property from her natal home-
her share in whatever property that was received as stridhan has always been less as compared to
the property inherited by her male siblings. The question of equal property rights amongst
siblings origins from this point. The ancient customs and the scriptures have not mentioned about
the property that an unmarried woman may get, what is found in such customary practices is the
“stridhan” which she receives in the form of Jewellery, utensils and cattles. The customary
practices have however- not differentiated between male siblings2.

The only point of difference may come as to who may be the last holder of the property and the
Karta, assuming that a Hindu Joint family is governed by Mitakashara law upon death of the
Father, the oldest son shall be the Karta and the last holder of the property. Under the original
Mitakshara School, son, so‟s son and son‟s son‟s son is a coparcener who has an interest by
birth in the ancestral/coparcenary property. However, this interest is only converted into a
specified share when a partition is claimed, until then this interest is fluctuating in nature, which
means- the more the births in the family, the lesser the shares of interest would be, but more the
deaths the more the share of interest in that property. The fluctuating interest of the coparcenary
is important to be understood, because the more siblings one has, the shares would decrease
accordingly and upon death of one or more siblings this would change as well. However, since
under original mitakshara school only male counterparts could be coparcener- uptill four degrees
from the last holder of property and only they were entitled to ask for partition, but by an

1 Manu, IX, 219.

2 SHARES TO FEMALE MEMBERS AT A PARTITION UNDER MITAKSHARA LAW, B. Sivaramayya,
Journal of the Indian Law Institute , Apr.-June, 1963, Vol. 5, No. 2 (Apr.-June, 1963), pp. 217-236
amendment made to the Hindu Succession (Amendment) Act, 2005 even a daughter was made
entitled to a coparcenary under the joint family.This amendment, changed the way property
would be divided amongst siblings.Now, the sister of a brother became entitled to get an equal
share like her male counterpart. Therefore, the purpose of this paper is to understand the way
contemporary legal changes that were brought about by statutory amendments and judicial
pronouncements have changed the customary practices and have promoted equal rights in a
property amongst siblings3.

Structure of the Paper- The Paper in Part I would first discuss the customary practices under
Hindu Mitakshara school wherein only male counterparts up till 4 degrees could be coparcener.
Further, Part II would discuss the fluctuating nature of coparcenary, Part III in continuation will
dwell upon difference of rights among male siblings. Part IV would discuss the contemporary
approach which includes rights of sisters as inserted by amendment to section 6 of Hindu
Succession Act. In the same section- Implications of the recent Supreme court ruling in Vinita
Sharma v. Rakesh Sharma is looked into. And finally, In Part V. The current social implications
and problem of equal property rights despite the legal provisions is demonstrated.

Research Questions- 1. How have sibling’ s rights in the property evolved after the codification
of Hindu succession Law and 2005 Amendment Act as compared to the customary practices? 2.
Whether after the legal conferment of rights equal property rights, women have been able to get
equal share in property? 3. What are the implications of Vineeta Sharma vs. Rakesh sharma on
the Equal property rights of siblings?

PART I: COPARCENARY UNDER MITAKSHARA SCHOOL OF HINDU LAW

Customary laws are basically the customs/practices that are followed by a group over a period of
time which takes the form of code of conduct, beliefs and norms which eventually takes the
nature of obligation. These norms become central to the functioning of social and economic
systems and of the institutions within it. These customs- later on acquires the force of law over
time due to its universal acceptance.

3PROPERTY RIGHTS OF HINDU WOMEN: A FEMINIST REVIEW OF SUCCESSION LAWS OF ANCIENT,

MEDIEVAL, AND MODERN INDIA, Debarati Halder and K. Jaishankar, Journal of Law and Religion , 2008-
2009, Vol. 24, No. 2 (2008-2009), pp. 663-687

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Coparcenary is an inner cabinet of a larger body called Hindu Undivided Family. “As per the
Hindu law defines “Hindu undivided family” as – HUF consists of all persons lineally
descended from a common ancestor and includes their wives and unmarried daughters.” Which
means that Hindu joint family consists of members who are common ancestors, male
descendants, wives and unmarried daughters, however not all the members of a joint family are
coparceners. The daughters once married ceases to be a member in the father;s family and
becomes the sapinda gotraja of her husband’s family4.

Coparcenary under Hindu Law were mainly made of the male members of this Joint family.
Where sons, grandsons and great-grandsons sons who have an interest by birth, in the
coparcenary property. Daughter’s under original Mitakshara could not be a coparcener and hence
upon partition she was not a legitimate claimant and hence was not entitled to any share in the
coparcenary property.

To sum up under Mitakshara school- a son, son’s son, son’s son’s son can be a coparcenary i.e.
father and his three lineal male descendants can be a coparcener. All the male members in the
same degree were also coparceners- and hence all brothers can ask for partition and they would
receive the property in equal share once the partition is done.

Example-

4 Saimy Eliza Abraham, “Short Note on Hindu Joint Family- Under Mitakshara and Dayabhaga”2018 IJLMH |
Volume 2, Issue 1 | ISSN: 2581-5369

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PART II. :- FLUCTUATING NATURE OF COPARCENARY

In a given situation if a partition is claimed by any given coparcener in a property it leads of

series of events which include severance of status, calculation of divisible property etc, However
the process of partition results in division of property in particular and specific shares in another
words once the partition has been done, a fixed share is allotted to each of the legitimate
claimants ( includes coparceners and some other members). And this share does not fluctuate
anymore despite any birth or deaths of the copacarnery in the joint family. 5

However, until the partition is not claimed- the interest of each coparcener in the property is
going to be fluctuating nature. Because, since a coparcener has an interest by birth in the joint
family property- as soon as a child is born ( within the four degrees) it results in decrease of
shares of other coparceners. if partition takes place in such a situation, the newborn will have a
share too. On other hand, if a coparcener dies (assuming he is unmarried without any issues) the
share of other coparceners would increase, because now if partition takes place- the share which
was originally to be given to the deceased coparcener would now not be divided.

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The conclusion is that- Through birth, the share will decrease and through death, it will increase
by its very nature. This has an implication to the property divisions amongst siblings because if
another sibling is born to a hindu Male X, his share will decrease. And if sibling of X dies, his
share will increase.

For examples, a) A has three sons, S1, S2 and S3. Each of them i.e. 2 A, S1, S2 and S3 will take
¼ shares in the joint family property, but as soon as S4 is born each of them on the partition will
take 1/5 share.

5 Elayat Karthiyayini Kunchi Amma vs. Minakshi Amma and Ors, 160 Ind Cas 594, (1936) 70 MLJ 114
(India).
6 Sahaj Karan Singh, “THE CONCEPT OF PARTITION UNDER HINDU LAW: WITH SPECIAL REFERENCE
TO DAYABHAGA AND MITAKSHARA SCHOOLS OF HINDU LAW”LAW AUDIENCE JOURNAL| |
VOLUME 1|ISSUE 4|JUNE 2019|ISSN (O): 2581-6705|

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PART III. RIGHTS OF BROTHERS UNDER MITAKSHARA LAW.

As per the law of partition, all the brothers in the same generation will be coparcener i,e- co-
owners of the property along with the father. Hence, the division between brothers would mean
that each of them gets an equal share in the property upon the partition.

However, the difference may be seen when one of the brothers becomes the last holder of the
property and the Karta. In a given factual situation if the Father A dies, then the eldest son S1
would become the last holder of the property and the Karta of the property. Here S1 would
become the Karta because he is the senior most male member in the family upon the death of
Father A. When S1 is acting in the capacity of Karta, the property acquired by him will not be
his absolute property rather it is a joint property wherein S2, S3 and S4 has an interest in it.

The Junior members of the family can become karta, if the senior most member gives up his
right of Kartaship. However, whichever brother is Karta in such a situation will have different
rights as compared to other brothers. For instance- 1. Power to represent the joint family in legal
and social situations. 2. Power of management of property 3. Power of alienation of the property
for legal necessities. 4. Power to take debts and to pay enter contracts.

Further, if the brother of a deceased brother may inherit the property ( ancestral property which
has been divided or self acquired property) of such brother if the father is not alive and the
deceased brother has left no lineal descendant, i.e. direct descendant. S1’s child, and S1’s child’s
child are lineal descendants of S. As per Section 8 of the Act, brother is a Class II heir, and he

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gets the share in deceased brother’s property if no one is present in Class I heir and father is not
alive.

PART IV. RIGHTS OF SISTERS IN PROPERTY VIS- A VIS BROTHER

A) Customary Approach

Under the original customary practices in the Mitakshara school, the coparcenary was a narrower
cabinet within the larger joint family. It exclusively consisted of male members ( three degrees
from the last holder of the property) who were the co-owners of the joint family property. Hence,
no female of a Mitakshara coparcenary could be a coparcener but she will always be a part of the
Joint Family. Hence, a sister was originally not entitled to receive any share in the joint property
as opposed to the brother. In the case of Pachi Krishnamma V. Kumaram 7, a sister claimed a
share equal to that of her brother in the joint family property, However she failed to prove that
there was a custom which entitled her to an equal share as that of her brother.

The denial of this right to a female sibling was rooted in the customary and religious practices.
Women did not have the eligibility to participate in the “sacrificial rituals” like that of the men
( brother). such an offering is to be made by a male on behalf of the family. It was written in the
Vedas that women lack the potency for dealing with the god Indra- and also consequentiality
happens to mean that women cannot be co-sharers in the joint property like that of her own
brothers8. The right given to the brother was basically derived from the right to offer a funeral
cake (Pind daan) to the ancestors. It was only a son, a grandson or a great-grandson who could
offer spiritual salvation. Such customary practices- excluded the women from receiving property
upon partition or in inheritance9.

B) Contemporary approach

The Hindu Succession Act (amendment) Act of 2005 gave the daughters/sisters of such brothers
coparcener in the ancestral property like the brothers. Under section 6 , by way of the
amendment. The amendment meant that daughters will become coparceners by birth in her own

7 Pachi Krishnamma Vs. Kumaran Krishnan, AIR 1982 Kerala 137

8 M. Kishwar, Codified Hindu Law: Myth or Reality , 33 Economic And Political Weekly
2145, 2154 (1994)
9 Nanak Chand vs. Chand Kishore, 1982 Del. 520 (India)

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capacity like that of her brother. Further such daughters will have the same obligations and rights
like that of her brother. If a Hindu dies intestate after the amendment act, the property would
devolve not by survivorship but it would be deemed that partition has taken place and the
daughter would be allotted the same share as her brother.10

The age old tradition came to an end, where only male heirs or male sons would have a share in
the property- the amendment brought a revolutionary change, as now a female became entitled to
the same property share as that of her brother upon partition or upon intestate devolution. Such a
share would become her absolute property. the amendment aimed at ending the discrimination by
negation of exclusion of daughter from ancestral property11

C) Case Laws- In the case of Prakash and Ors v Phulvati and ors 12, the court held that the
amendment of 2005 is only applicable to the living daughters of coparceners who were
living the day amendment was brought in force- i,e 9th september 2005, regardless of
when such daughters are born. However, in the case of Danamma @ Suman Surpur &
Anr. V. Amar & Ors13, the Apex court ruled that daughters will have equal rights in the
ancestral property even in situations wherein such daughters have been born much before
the very enactment of the HSA, the court also granted the daughter rights in the
coparcenary property who had died much before 9.9.2005.This created controversy, and
the matter came before the Apex court in the case of Vineeta Sharma v. Rakesh Sharma.
The issue before the court was whether the 2005 Amendment meant that the daughters
will have the same right as of a son in the coparcenary property irrespective of the father
being alive before the Amendment? The court ruled that it will not be essential that the
coparcener- father should be living on 9 sept, the date on which amendment came, for
daughter’s to be eligible as a son for a share coparcenary property. Rather, the daughter is
the coparcenary similar to the son by birth, regardless of her birth before commencement
of the amendment act or afterwards. However, if its a daughter who is born before 9th

10 WOMEN'S PROPERTY RIGHTS UNDER TRADITIONAL HINDU LAW AND THE HINDU SUCCESSION
ACT, 1956: SOME OBSERVATIONS, Prakash Chand Jain, Journal of the Indian Law Institute , July-December
2003, Vol. 45, No. 3/4, Family Law Special Issue (July-December 2003), pp. 509-536
11 Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 1956, Shivani
Singhal, Student Bar Review , 2007, Vol. 19, No. 1 (2007), pp. 50-67
12 Prakash & Ors. vs. Phulavati & Ors, (2016) 2 S.C.C. 36) (India).
13 DANAMMA @ SUMAN SURPUR & ANR. V. AMAR & ORS, (CIVIL APPEAL NOS. 188-189 OF 2018
[@SLP(C) Nos. 10638-10639 of 2013]) (India)

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 september 2005, she will be able to claim the rights only with effect from the date of the
amendment, with saving of past transactions as provided in the proviso to Section 6(1)
read with Section 6(5). The court’s attempt by giving this ruling was to ensure that the
concept and structure of the HUF stay intact. On the contrary, the 174th Report of the
Law Commision of India had suggested that the coparcenery should be abolished in order
to rectify the inherent discrimination and biases present in Hindu succession amendment
act of 2005.
D) Implications of Vineeta Sharma v Rakesh Sharma on sister’s right to property.

In order to understand the implications lucidly, an assumption could be taken 14up with respect to
the existence of a family consisting of a Father A, 2 sons, namely S1 and S2 and the
daughter/sister D. This joint family has a joint coparcenary property, say an ancestral house. As
far as the concepts that have already been dealt with- it becomes obvious that after the
Amendment Act of 2005, D as well has become a coparcener and holds the same rights and
liabilities like her two brothers. As a coparcener she has also become eligible to seek partition
and get her share in the coparcenary property.

Situation A-Continuing the earlier proposition assuming that A dies in the year 2018, survived
by the three children. The brothers S1 and S2 claim that after the death of father they have
become the owner of the coparcenary property ( Ancestral house in this situation) to the extent of
½ - ½ each, and they wish to sell this property and get the money. The question arises can D, in
2019 claim that she has an equal right in the property and sue her brothers?

- Yes, D will be able to claim an equal right to the property, just like her brothers. the
premise is that she is a coparcener along with her brothers after 2005 which makes her
eligible to get the equal share.

Situation B- Assuming, A, has passed away in 2001. As earlier the amendment came in 2005,
so it is obvious that the father died before D was a coparcener. In the year 2007, D falls in love
and marries away to another town with H. The two brothers are still residing in the ancestral

14 Bharat, Chugh, “Jugements without tears, Vineeta Sharma v. Rakesh Sharma” seet at -
https://bharatchugh.in/2020/08/12/unpacking-vineeta-sharma-v-rakesh-sharma-supreme-court-on-daughters-as-
coparecenars/ (Last accessed- 1/4/21)

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house. In 2020, due to the Pandmeic, D realises that she is in need of money so she asks for
partition of her ancestral house in order to get her share. Is she eligible to get an equal share?

- The judgement of Vineeta Sharma 15has given the answer to such a situation. As a matter
of a fact, no partition was done till 2020 of the ancestral house and since D is also the
coparcener she can seek and get a share of ⅓ in the ancestral house. She can sell this
1/3rd part of the house or she can get money as much as the market price of the 1/3rd
share is. Before the judgement had taken place, the brothers of D could have argued that
in 2001 when A passed away, an automatic notional partition took place and by the
doctrine of survivorship, the rights of S1 and S2 were crystallized in the ancestral house.
since, D became coparcener four years later she is not eligible for any share, since her
coparcenary does not start retrospectively . If and only if the father had died after 2005,
when she was coparcener, she would have received an equal share to the extent of ⅓
property. but after 2005, she will only get ⅓ of her father’s share that will devolve
equally amongst the three children getting her a final share of 1/9 in the property. The
reason being that the two brother’s got 1/3rd share each when the notional partition took
place when A passed away, and the only thing D will get is the Father’s share divisions’s
1/3rd part as a class 1 heir. The judgement has settled the controversy by saying that for
D to be eligible for her share as her brothers even though her father wasn't alive in 2005.
The right is conferred to her by birth and is not contingent on the living status of her
father. Further a notional partition is just a legal function and not an actual partition.
Hence D’s brother cannot say that property stood partitioned on A’s death automatically
and D won’t have a share.

Situation C- Continuing the proposition, if the brothers S1 and S2 attempt to take over the
property and defeat the right of D2 by claiming that the partition had already taken place when
orally before 2005, and now D has no rights in it, will this argument succeed?

- It is possible that the brother’s could come up with this fabrication and since oral
partition does not have any paperwork, this could actually threaten the rights held by D.
Vineeta Sharma’s Judgement has come up with a solution of this problem till a greater
extent. D will get her 1/3rd share unless the two brothers are able to prove by way of

15 (2019) 3 SCC (Civil) 171

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 evidence that an oral partition actually took place. However there could be such situations
where D will not be entitled to any share if shown that a settlement deed was entered into,
and the property was officially mutated in the name of two brothers, with the consent of
D, where in she relinquished her right, so as per the judgment, she cannot seek her share
if she did not complain for so many years, even if the NOC and settlement deed were
unregistered docs. Further, in case this partition was actually on paper in the form of a
registered deed then also D will not be able to claim any right as the partition was closed
before 2005, and she cannot challenge the same in 2020.

SITUATION D- Elaborating on previous explanation, Assuming than an actual partition took

place in 2001, since D was not a coparcener, she only asked for 1/9th share as a class I heir, the
suit was finalised and she got her share. After 2005, D realised that now she was a coparcener
and she is entitled to 1/3rd share like that of her brothers, can she claim it in 2020?

- She cannot do that, since the partition took place back then and everyone’s share was
fixed and rights were as well crystallised, the same partition cannot be opened now on the
ground that now the daughters are coparceners too.

SITUATION E- the father A dies in 2001 and the other two sons of his are still occupying the
ancestral house, later on D gets married and in sometime in 2003 when the recession hits, in the
need of money she seeks partition, a preliminary is passed and she is given the share of 1/9 in the
capacity of class I heir but before there could be final decree in this matter and before partition is
taken place by metes and bound , in 2005 she becomes a coparcener just like her brothers can
there be a change in her share now as equal to her brothers?

- In such a case, D will be entitled to 1/9th share after the amendment is in place, because a
preliminary decree is not a real partition but only in principle- the physical partition has
not yet taken place and hence D will get an equal share notwithstanding the decree that
was given preliminarily.

PART V- EQUAL PROPERTY RIGHTS FOR SISTERS: STILL A DREAM

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In India, even though daughters have been made coparceners and are class I heirs, entitled to
equal property share in the father’s property and ancestral property- the Sisters are still unable to
get their share due to social conditions. The Brothers often do not permit their sister’s to take an
equal share in the property by not letting them know of their exact rights and share in the
property and secondly by emotionally manipulating them to relinquish their share- since
daughters are still treated as a burden and a liability in the Indian society in addition to the
rampant problem of dowry, sisters are being deprived of their legal right in the property and
hence social and cultural barriers continue to deprive women of their right. At times due to the
fear that claiming an equal share might jeopardise her relationship with her brother’s women let
go of their share. As per a news report of NDTV 16 “A study by UN Women and Landesa found
that 44 per cent of the women surveyed believed their parents would not agree to bequeath them
a share of their land. While 53 per cent believed their brothers would oppose the idea.”. In the
same report while quoting a lawyer it was said “Girls are forced to sign relinquishment deeds, In
some cases, women have been reluctant to go to court to claim their rights because they find the
legal process too cumbersome, other times women were are entitled to 50 per cent, they ended up
settling for 30 per cent.”. The Problem of legal literacy continues to haunt the implementation of
the Equal property rights that have been conferred to the sisters.

CONCLUSION

The Paper has to large extend attempted to trace the legal changes that have been brought about
with the codification of Mitakshara hindu coparcenary that had deprived the sisters from
claiming equal property rights as her brothers- a lot of other factors were also looked into that
affect the share of siblings such as fluctuating nature of coparcenary, difference in rights being
brought due to the system of Kartaship etc. The amendment to section 6 has been revolutionary
in settling the ultimate law that meant that sisters and brother both are entitled to the same share.
the remaining controversies have also been settled by the judgement of the court in Vineeta
Sharma v. Rakesh Sharma has answered various situations that solidify the rights of sisters.
However, The current social implications and problem of equal property rights despite the legal
provisions still remain, requiring further reforms such as spread of legal literacy, relaxation of
legal process, and making the laws of relinquishment tough and in the light of scrutiny.
16 Despite Law, Daughters Unable To Inherit Paternal Property, see at https://everylifecounts.ndtv.com/despite-
law-why-are-daughters-unable-to-inherit-property-3789 (last accessed 3/4/21)

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 BIBLIOGRAPHY

1) D.F. Mulla, Principles Of Hindu Law 315 (2000)

2) .D.M. Derrett, Introduction To Modern Hindu Law 248 (1963)
3) K. Nagendra, The Concept of Right by Birth and its Changing Dimensions m the Hindu
Joint Family Law 8 (2000)

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