The SC bench comprising of J. Arun Mishra, S. Abdul Nazeer and MR Shah in the landmark judgment on daughter right as coparcener have entailed a brief understanding of the law related to devolution of coparcenary property and the Hindu succession Act, 2005 implication on the rights of the daughters.
The bench have entailed that as per the spirit of the constitution the daughters have the right to be a coparcener according to the 2005 amendment act and the injustice faced by daughter as per the shastric Hindu law where they were not entitled to be a coparcener has been made void.
Justice Mishra went on to explain the original Hindu succession law, the coparcenary system and the joint family system in his 121 pages judgment , further the judgment have also thrown light on some of the Hindu laws
Joint Hindu Family
Members are lineally descended from common ancestors, it includes un-married daughters and wives, members have a common faith of worship and common share common assets, after the separation of assets the joint family ceases to exist.
Schools under Hindu Law
Mitakshara and Dayabhaga are the two main schools of law under Hindu law system; Mithakshara is prevalent across all of India except for Bengal.
Coparcenary system in Hindu law
Before 2005 only the son’s grandsons and great-grandsons were included as coparceners, this right was not given to women, daughter or wives. Coparcenary property is held by the joint family with equal shares of each member, it is inherited from the father, grandfather and great grandfather. Property inherited or give by some other person is the individual property and will not be held jointly as in coparcenary. Coparceners get the right in the coparcenary by virtue of birth; and being an heir, another way of being a coparcener is through adoption. Coparcenary is created by law and hence a coparcener has the right to demand partition of the coparcenary property.
Other breakthrough Statement
The court resolved an important issue as to whether the father and the daughter shall be living at the time of the 2005 amendment, to be a coparcener, the court clearly established that coparceners right is by birth and hence the claim that father and daughter should be living at the time of the amendment is an invalid one, hence daughter can step as a coparcener as a son can by birth before the amendment was initiated. Daughters born before the amendment can claim Right after the effect of the amendment on 9.92005.