The present article aims to analyze the daughter’s right to property inheritance in her father’s property, with a primary focus on the persistent gender-discriminatory provisions and conditions before the implementation of the Hindu Succession Act 2005. For the study purpose, the article has provided a detailed overview of the scope of the daughter’s property rights before and after amendment in the Hindu Succession Act with the help of relevant case laws.
Introduction
The Hindu Succession Act 1956 at the time enactment didn’t have any provision regarding the rights of daughters in the coparcenary property of their father. The initial belief of Hindu Undivided Family was that since daughters get married, they become part of another family, and hence are not entitled to inherit the coparcenary property of the father’s. Since then, a string of legislation was passed, and debates on this gender-discriminatory legislation continue to hit the shore as to why daughters should not be given the same rights as sons in their father’s property.
It was in 2005 when the amendment was brought in the Hindu Succession Act with the aim to remove gender discriminatory provisions regarding the right to property. It was indeed a great initiative by the Supreme Court in the direction of providing an equal right to both daughters and sons. The major achievement was including all daughters especially the married daughters as coparceners in the HUF by amending the provision which excluded the rights of daughters from the coparcenary property.
Effect of the amendment act 2005 on the position of Daughters
As per Mitakhashara Law, a son would inherit his deceased father’s property and will have a rightful share in the joint family property, whereas, the daughter of the deceased father would only get a share out of the notional partition. Meaning, daughters don’t have the right to inherit the father’s property by virtue of birth in Mitakashara law. However, the amendment act made daughters including married ones a coparcenary (right by birth) in the ancestral property, giving equal right to both sons and daughters.
The provision mentioned under section 6 of the Hindu Succession Act is as follow:
“Devolution of Interest in Coparcenary Property – (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
- by birth become a coparcener in her own right the same manner as the son;
- have the same rights in the coparcenary property as she would have had if she had been a son;
- 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 (Amendment) 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,-
- the daughter is allotted the same share as is allotted to a son;
- 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
- 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 a pre-deceased daughter, as the case may be.
Explanation: For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition LatestLaws.com of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”[1]
Married Daughter’s right to property under the Hindu Succession (Amendment) Act, 2005
The 2005 amendment has made it clear a daughter after her marriage continues to be a coparcener in the property, but she ceases to be a member of the parental HUF. This means she is entitled to ask for partition, she can also be the Karta of HUF provided that she happens to be the eldest coparcener of her father’s joint family. Additionally, the daughter doesn’t hold the right to gift her share in the HUF property while she is alive except by way of will; she can give away her share. After the death of the married daughter, her children or legal heirs shall be entitled to get the share.
Anomaly created over Section 6
Thereafter confusion arose as to whether the applicability of section 6 of the act will be for women born after 2005 or have a retrospective application to entitle the benefits by the women. The Supreme Court headed by a 2-judge bench in the case of Prakash & Ors vs Phulavati & Ors (2015) opined as under:
“The rights of coparcener under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.”[2]
It means that if the deceased father passed before the 9/9/2005 (the date when the amendment came into force), the living daughter of the coparcener would have no right in his property. Thus, the apex court had set a clear distinction for the availability of rights under the 2005 amendment act, but anomaly arose regarding its applicability. To avoid confusion, the 2-judge bench court in the case of Danammas vs Amar (2018) gave a peculiar judgment produced as under:
“Partition is not complete with passing of preliminary decree & attains finality on final decree. If father had died before 2005 & prior suit is pending by male coparcener for partition, female coparcener is entitled to share in partition”[3] which changed the distinction made by the court in the previous Prakash 2015 case. It was held that the daughters would have same inheritance rights equal to those of sons from the properties of their father, grandfather, and great grandfather right from the codification of the Hindu Succession Law in 1956.
Soon after, another two-judge bench headed by Justice RK Agarwal iterated the position taken in the 2015 Prakash case. Due to these conflicting views by benches of the same strength, an anomaly was created on the position of applicability of section 6. So, the issue reached before the 3-judge bench headed by Justice Arun Mishra in the recent case of Vineeta Sharma v. Rakesh Sharma (2020) held that the daughters are entitled to the equal right to the property even if they were not born at the time of the 2005 amendment of the Act, and even if the father died prior to the commencement of the amended Act.
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.”[4] The two crucial points of the decisions are:
- Coparcenary rights are acquired by daughters by virtue of birth as those of son; and
- Fathers need not necessarily have to be alive when the 2005 amendment act was passed.
So, the latest position is that the amendment would have retrospective effective in conferring coparcenary rights on the daughter who was alive at the amendment, even if they were born prior to it.
Conclusion
A lot of interpretation has been made on the applicability of section 6 of the Hindu Succession Act 1956, as amended by the 2005 act which led to contradictory results. But all the contradictory judgments as discussed above are now set aside by the Supreme court presided by the 3-judge bench which held that the amended 2005 act has a retrospective effect.
The final position is that the daughters have equal coparcenary rights as of the sons in her father’s property, irrespective of the date of birth of the daughter or the date of death of the father. The decision is commendable as it has finally abolished the discriminatory provision that primarily led to oppression and negation of daughters’ fundamental rights, with now inclusion of a daughter as a coparcenary in the ancestral property.
[1] Hindu Succession Act, 2005, sec. 6.
[2] AIR 2013 SC 7217.
[3] (2018) 3 SCC 343.
[4] Civil Appeal 32601/2018.
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