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Fatherís Property: Daughterís Equal Rights Under Hindu Law

The current Article basically focuses and enlightens the equal rights to be enjoyed by a daughter in the inheritance of her fatherís property.[1] The present Article also focuses on the gender based discrimination and various provisions that were in force before the enactment of The Hindu Succession Act 2005.

Introduction
Earlier, as a common belief was followed by all that, in a Hindu Family since the daughters get married and leave their first homes, they tend to be a part of another family and thus were not eligible to be included in the inheritance of coparcenary property of the father. Also, The Hindu laws did not include the rights of the daughters in their fatherís coparcenary property. Previously there have been numerous debates on the same as to whether the daughters should really be given the same rights as sons in their fatherís property.

The amendment in The Hindu Succession Act 2005 was brought in order to curb the gender discrimination. This step was taken by the Apex Court so that both sons and daughters can enjoy equal rights. The essence of this amendment lies in giving the married daughters equal rights in their fatherís property as it was never included before.

In What Ways Did This Change Bring An Impact On The Daughters?

It was indeed believed that the ďsonĒ would enjoy the right of inheritance of the deceased fatherís property and will rightly so have a share in the joint familyís property as well. This law was completely different for the daughters, which means the daughters technically did not have any rights to inherit the fatherís property by birth.

As the wise professionals always stand against the miscarriage of justice, this gender discrimination had to be rightfully acknowledged and uprooted out of the system. The Amendment Act was thus made, and all the daughters including the married ones were declared to have a right by birth in the ancestral property, giving equal rights to both sons and daughters.
In order to have a better understanding of the said article, it is a must that we focus on the provision mentioned under section 6 [2]:
Devolution of interest in coparcenary property:
  1. On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall:
    1. By birth become a coparcener in her own right the same manner as the son;
    2. Have the same rights in the coparcenary property as she would have had if she had been a son;
    3. Be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

      Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December 2004.
       
  2. Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
     
  3. Where a Hindu dies after the commencement of the Hindu Succession Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession. As the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and

    1. The daughter is allotted the same share as is allotted to a son;
       
    2. The share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
       
    3. The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or pre-deceased daughter, as the case may be.

Right to property is also applicable for the married daughters under the Hindu Succession (Amendment) Act, 2005
Now, the amendment in the Hindu Succession Act has made it loudly clear that when a daughter gets married she still continues to be a coparcener in the said property, but she ceases to be a member of the parental HUF.

In other words, even though the daughter is entitled to rightly ask for the partition, she can also be the Karta of HUF under the condition that she is the eldest coparcener of her fatherís joint family. The daughter here does not hold the right to gift her share being alive except by the way of will. After the demise of the married daughter her next of kin, her children or legal heirs will thereby be entitled to rightly hold the share in her property.

The Apex Court thus in 2015 ruled that the rights of coparcener under amendment Act 2005 are applicable to living daughters of living coparceners as on the 09th of September, 2005 irrespective of the birth date of daughters.[3] This indeed raised a chaos and confusion and was anomalous. The Apex Court thus in the year 2018 ruled and passed a verdict that if the father had died before 2005 and if any prior suit is pending by a male coparcener for partition, the female coparcener is entitled to share in partition.[4]

Therefore, the amendment in the said Act has a retrospective effect on the daughters born at or prior to the amendment. As coparcenary rights are acquired by the daughters by birth as those of sons and fathers need not necessarily have to be alive when the 2005 amendment Act was passed.

Conclusion
After all the struggles, contradicting views and ideologies we all along with the Supreme Court of India stand by the enactment of the Amendment of Section 6 of The Hindu Succession Act, 2005 where in it is declared to have a retrospective effect in providing equal rights to both sons and daughters of the nation. Irrespective of the date of birth of the daughters as well as the fathers, the daughters are entitled to the rightly said equal rights as given and enjoyed by the sons.

This decision thus, makes a great impact in our current society in order to uproot gender based discrimination that has been going on for decades. This eliminates the oppression of fundamental rights of the daughters of this nation by including them as a coparcenary in the ancestral property. As rightly said, as soon as we inculcate how to live with a humanistic approach, weíll be free from the gender discrimination in our daily lives and will learn to live with dignity.

End-Notes:
  1. Vineeta Sharma v. Rakesh Sharma (2020
  2. Section 6, The Hindu Succession Act 2005
  3. Prakash & Ors V. Phulvati & Ors AIR 2013 SC 7212
  4. Danammas V. Amar (2018) 3 SCC 343

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