Skip navigation

Evolution of a Daughters’ Right to Property in India

Jan. 13, 2022   •   Suryasikha Ray

About the Author: I am Urja Mishra. I am pursuing B.A.LL.B from D.E.S’s Shri Navalmal Firodia Law College under the Pune University. I am in my Second Year of Study and my interest areas of study are - Cyber Law, Social-Media, Psycho-Legal issues and Commercial Laws.

Culture does not make people. People make the Culture. However, often it is this very culture that creates a separation amongst the people. The predominant separation of all is the separation between a man and a woman; i.e., gender inequality. Owing to the shackles of patriarchy in India, women have been deprived of their rights for a long time. Similar is the case with the right to property and its inheritance. The Landmark Judgement of the Supreme Court in August 2020 paved the way for the daughters to exercise their right on the property belonging to their fathers and ancestors.

Tracing the roots of this prevalent inequality comes into the picture The Hindu Succession Act of 1956. During this period the status and role of Hindu women were defined according to Dharmashastras and confined to the 4 walls of the house along with being subjected to the male members of the family. Hence, the lawmakers of that time did not feel the necessity to give equal rights to daughters in the coparcenary property of the father, simply because she would be belonging to another family, post her marriage.

The Shastric and Customary laws were the major sources of governance of all the social and cultural practices. These laws differed from place to place and caste to caste. Hence the nature of such laws is diverse. This also led to the foundation of different schools like Mitakshara and Dayabhaga based on the vivid interpretations of Smritis which were referred to on issues of succession.

The Hindu Succession Act, 1956 was an integral Act, executed with the view of coding and amending the laws on the natural succession of the Hindu, Buddhist, Jain and Sikh communities; implying that the Act will deal specifically with intestate succession.

Section 6 of the Hindu Succession Act, (before the 2005 Amendment) exemplified that:

“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”.

This law implied that none of the female members was entitled to be a part of the lineal descendant of the coparcener. Similarly, any other heir including the siblings, widows of the deceased coparceners were not entitled to any right of ancestral property or of inheritance. Thus, the only true coparceners (according to the survivorship rule) who could exercise their right to property were the male lineal descendants of the coparcener.

To end the preponderant tyranny of gender discrimination in the Hindu Succession Act, 1956, the legislators amended the Act after 50 years in 2005. A coparcener is a person who can legitimately inherit the ancestral property from the very time of birth. Specifically, a coparcener is someone who has an equal share in inheriting an undivided property. A coparcenary property is defined as a property that is inherited by any Hindu from his father grandfather or great grandfather. The fundamental purpose of amending the Act was because it proliferated gender discrimination as it did not consider women as the coparceners, thus not entitling them to exercise the right to ancestral property like their male counterparts.

Section 6 of the Act was amended in 2005 with the view to entitle the daughter of a coparcener to be a coparcener since her birth and at the same time exercise her rights in the same manner as of a son. The amendment also provided the daughter with the same rights and liabilities in respect to the coparcenary property as she would have had if she had been a son.

Following are the Vital Changes after the 2005 amendment

  1. The act amended the provision which excluded daughters from coparcenary property.
  2. Daughter of a coparcener shall birth become a coparcener in the same manner as the son.
  3. Coparcener property shall be allotted to the daughter as is allotted to sons if a Hindu dies.
  4. A daughter is entitled to demand a partition of the Hindu Undivided Family.
  5. A daughter is also entitled to dispose of her share in the coparcenary property at her own will.
  6. If a female coparcener dies before partition, then children of such coparcener would eligible for allotment assuming a partition had taken place immediately before her demise.

However, in the amended Section 6 there were quite a few Lacunae that also posed a problem during its application:

There are 3 pertinent cases that are crucial in this context:

  1. Prakash and others v. Phulavati (2016): Here, the Supreme Court had the following remark “The rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.” This implies that in case the coparcener(father) had died before Sept 9, 2005, the living daughter of the coparcener would have no right to coparcenary property. The verdict also elucidated that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as of 9 September 2005.
  2. Danamma vs Amar (2018): In this case, the judgement of the Apex Court was in contrast to the judgement of the previous case. It affirmed that the nature of the application of Section 6 is retrospective. Here, the father had passed away in 2001, leaving behind two daughters, two sons and a widow. The Supreme Court opined that “it is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by birth.” Following the above-withheld statement, it further ruled that the two daughters being coparceners were entitled to an equal share in the coparcenary property despite the fact that the father was not alive when the substituted Section 6 came into force in 2005. The above mentioned two cases led to an aeon of confusion in the interpretation and application of Section 6 of the Hindu Succession (Amendment) Act 2005. Nevertheless, the landmark judgement of 2020 in the case of Vineeta Sharma v. Rakesh Sharma solved all the confusion and constructed a profound yet clear interpretation of the Act.
  3. Vineeta Sharma v. Rakesh Sharma (2020): A three judges bench headed by Justice Arun Kumar Mishra propounded an exemplary remark, “A son is a son till he gets a wife, but a daughter is a daughter all her life.” Following are the highlights of the judgement:
  • A Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.
  • The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does. Since the coparcenary is by birth, it is not necessary that the father coparcener should be living as of 9.9.2005.
  • If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.
  • Daughters cannot be deprived of their right to equality conferred on them by Section 6.
  • The daughters' marital status will not affect the rights conferred on them by the 2005 amendment.

The Judgement indeed proves to be a boon as it provides a solution to the lacunae in the Act, thereby surpassing the ambiguity along with integrating the Constitutional Values by recognizing Article 14 (Right to Equality) and giving the daughters an equal status in matters of inheritance and property. Additionally, it also economically empowers the women who are often marginalised by the male members of the family. Thus, the law acts as a tool to provide aid to them. However, it is also imperative to note that the Act is only in concern with the Ancestral Property and does not include personal or self-acquired assets. The personal or self-acquired assets work in consonance intestate succession law or the will which is still somewhere under the shackles of Patriarchy. Hence, this judgement is a stepping stone towards the goal of gender parity.

References:

Disclaimer:
The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government or institution.

Liked the article ?
Share this:

← Return to all blogs

Blog Categories

All Student's Pen Event Legacy