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Daughter's Right to Property

At the time of the enactment of the Hindu succession act, 1956, the legislators did not actually feel any need for giving rights to daughters in the coparcenary property of the father. It was believed at that time that after her marriage, the daughter will be part of another family and should not have the right to inherit the coparcenary property of her father's HUF. It is always said that daughters are the heart of the family. Once a daughter always a daughter.

So, why not they should get equal rights as sons in the property of the father? On 9thof Sep 2005 the amendment in the Hindu Succession Act, 2005 which was essentially meant for removing gender-discriminatory provisions regarding property rights. It was a great initiative taken by the apex court.

Where an amendment was made in sec 6 of the Hindu Succession Act, 2005 that if the father and the daughters are alive on the amended date then the daughters have Coparcenary right. But, this clutch of the previous Judgment of the apex court has been set aside by a three-judge bench headed by Justice A.K. Sikri. SC held that daughters will have inheritance rights equal to those of sons from the properties of the father, grandfather, and great grandfather right from the codification of the law in 1956.

Who is Coparcener?

Coparcener is the one who has the legal right in the ancestral property since birth. It means unity of title, possession, and interest. A coparcenary property is one which is inherited by any Hindu from his father, grandfather, and great grandfather. Before 2005, the coparcener includes only sons, grandsons, and great-grandsons who were holders of joint family.

String of legislations

  1. Before the Hindu succession act, 1956, Hindus were governed by shastric and customary laws which were varied from region to region. They followed different schools such as mitakshara and Dayabhaga School, related to matters of succession and inheritance.
     
  2. After that, the Hindu law of inheritance act, 1929 was passed that includes the women into the matters related to inheritance and give right of inheritance up to three female heirs, such as son's daughter, daughter's daughter, and sister.
     
  3. The Hindu succession act, 1956, is an act of parliament of India which was enacted to amend and codify the law on succession and inheritance with an attempt to ensure equality inheritance and succession rights between sons and daughters. This act is applied to all Hindus including Buddhists, Jains, and Sikhs. This act stated two types of property- Ancestral and self-acquired property.
     
  4. Property right of a daughter before the 2005 amendment –Section 6 of the act (before the 2005 amendment) “Devolution of interest in coparcenary property- When a Hindu male dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

    According to this, only males were recognized as coparceners of the Hindu undivided family. Females were not considered as lineal descendants of the coparcener or from the same bloodline. All the coparceners were members, but not vice-versa. Only males were the coparcener up to 3 generations. The ancestral property was divided by survivorship rule only, and women were not recognized as coparceners. Female members were not entitled to become a Karta of HUF and manage their affairs.
     
  5. Daughter's right to property after 2005

    After around 50 years, the center passed the amendment act of 2005 to address the gender discrimination in coparcenary property. Earlier, women were not considered as coparcener to inherit the ancestral property since birth like sons. Section 6 of the act was amended which deals with coparcener's right in Hindu undivided family property. the amendment act, 2005 canceled the survivorship rule and introduced testamentary and intestate succession.

    Daughter shall have the right to become a coparcener in the same manner as a son and also entitled to demand a partition of HUF. she is also entitled to dispose of her share in coparcenary property at her own will. Daughters were recognized as coparceners since birth. Likewise, the son, the daughter will also have equal liability. However, only the daughters who are born in HUF will get the coparcenary right. Section 24 of the act was repealed because it denied rights of a widow to inherit her husband's property upon her re-marriage.

    • Married daughter's right to property under Hindu succession act
      After marriage, the daughter will continue to be a coparcener but cease to be a member of our parental Hindu undivided family. She is entitled to ask for partition as well as he can become a Karta of HUF only in case she happens to be the eldest coparcener of her father's HUF. After the death of the married daughter, her child shall be entitled to get her share. Very importantly, the daughter does not have a right to gift her share in the HUF property while she is alive but by the way of a will, she is capable of giving away her share. After the death of the married daughter, Har share will automatically pass over to her legal heirs.

Confusion over the applicability of Section 6

  • In the case of Prakash and others v. Phulavati (2016), a two-judge bench held that the rights of coparceners are applicable to the living daughter of a living coparcener. If the father died prior to date .09.09. 2005, the daughter would have no right in coparcenary property in that case. father had to be alive on the date of enforcement of the 2005 amendment. Subsequently, the daughter can claim benefits under the 2005 act. The father and daughter both must be living on the date of the amended law. But, if the father was not alive on or before the amended date of law then the daughter cannot claim for right in property.
     
  • On the other hand, in the case of Danamma v. Amar (2018), another two-judge bench had held that the father may have died before 2005, yet the daughter will get the equal share and daughters are entitled to this coparcenary property.

    These two cases created confusion on the interpretation of section 6 of the Hindu succession amendment act, 2005 because there was a conflict of belief regarding the Coparcenary rights of daughters in father's property
     
  • In the recent case of Vineeta Sharma v. Rakesh Sharma (2020) A three-judge bench headed by Justice A.K. Sikri held that the daughters are entitled to equal property rights even if they were not born at the time of 2005 amendment to the Hindu succession act, 1956, and even if the father died prior to the coming into force of the amendment act, 2005.
    Justice Mishra stated:
    Daughter remains a loving daughter throughout life and they shall remain a coparcener throughout life, irrespective of whether her father is alive or not.

    The SC ruled that the 2005 amendment would have retrospective effect in conferring rights on daughters, who were alive at the amendment, even if they were born prior to it.

Conclusion
It is concluded that the apex court is regarding the contradiction of coparcenary rights of the daughters that If their father was alive or not on or before the amended date of law which was in regard to the interpretation of sec 6 of Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005. But, all the contradictory judgments are now set aside by the three bench judgment of the apex court. Now, the daughters have coparcenary rights in the father's property.

Whether he was alive or not on the amended date of the law. Henceforth, according to the recent judgment passed, the amendment act, 2005 has been declared retrospective and daughters are given equal rights over ancestral property even if the father died prior to Sept 9th, 2005. A woman will have an equal share in the undivided family property regardless of whether her father was alive when the law was amended in 2005 or not, stressing that the law has a retrospective effect.

Written by:
  1. Sandeep Rana-B.A.L.L.B. (Hons.), at Chandigarh University, Gharuan and
  2. Deepak Garg-B.A.L.L.B. (Hons.), at Chandigarh University, Gharuan.

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