Daughter has right over Parental Property even if Father died before Hindu Succession (Amendment) Act 2005

Daughter's Right to Ancestral Property irrespective of Father's Death

In a remarkable judgment delivered on 11.08.2020, the Supreme Court has held that a daughter will have a share in ancestral/coparcenary property under the Hindu Succession (Amendment) Act, 2005, even if her father had died before the 2005 Amendment Act. The Apex Court, through this judgment, has cleared ground regarding the retrospective effect of the Hindu Succession (Amendment) Act 2005. Justice Arun Mishra, along with Justice S Abdul Nazeer and Justice MR Shah pronounced the said judgment and stated that “ Daughters must be given equal rights as sons& hellip ... The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not” .

The clarification that this judgment has brought, was necessary, as it has set aside a bunch of orders or decisions by the Supreme Court, which somewhat ideated that the daughter would have the coparcenary rights, only if both she and her father were alive on September 9, 2005, i.e. the date on which the amendment had been notified. The objective of the 2005 amendment was to declare that daughters are to be given rights in HUF property, equal to the rights that were granted to a son, and thus, according to the SC bench, the conditions that the she and her father had to be alive at the time of the amendment, would go against the very spirit of such amendment. The SC has held that a daughter - whether living or dead on the date of the amendment is entitled to a share in her father's property, which means that if she has died before the 2005 amendment, her children can claim their rightful shares. In the current matter, a certificate of fitness to appeal to the Supreme Court had been granted by the Delhi High Court after giving regard to the fact that the Supreme Court had given conflicting opinions/decisions in Prakash v. Phulavati, Danamma @ Suman Surpur v. Amar, and Mangammal v. TB Raju. The ambiguity surrounding the extent and nature of a daughter's rights in HUF property has now been settled with this SC judgment.

What are coparcenary rights?

& lsquo Coparcenary', the term, is essentially used for matters related to Hindu Succession law. Coparcener refers to an individual with the capacity to assume legal rights in ancestral or HUF property by birth itself. Coparcenary rights are rights created by law and cannot be created by an act of parties (except in the case of adoption). These rights are derived from the concept and practice of the Hindu Undivided Family (HUF). The Hindu Succession Act 1956 extensively deals with coparcenary rights, although, several amendments have been made in the concept, in order to be more inclusive equal to women/daughters' rights.

What is the Hindu Undivided Family or HUF?

Hindu Undivided Family or joint family is an extended arrangement of family members, wherein, each member is a lineal descendant of a common ancestor. Such a family includes a common ancestor who is the oldest member and three generations of his descendants. Not only in Hindus, but this kind of arrangement is also seen in Sikhs, Jains, and Buddhists. HUF and succession in such families are governed by the Hindu Succession Act 1956 .

What is ancestral property?

Ancestral property is that property that is inherited from up to four generations of (male) lineage and should have remained undivided throughout this period. A right to share in ancestral property accrues by birth (coparcenary), unlike other forms of inheritance wherein the right to share opens upon the death of the owner of such property. After the 2005 amendment in the Hindu Succession laws, daughters are now equal coparceners as that of sons i.e. they also have a right to an equal share in the ancestral property by birth.
 

Hindu Succession Act 1956 and Daughters' Coparcenary Rights before and after the 2005 Amendment

1. Position before 2005

The Hindu Law of Inheritance Act 1929 was the first law to bring women into the whole scenario of inheritance and laws related to it. This Act gave inheritance rights up to 3 female heirs i.e. son's daughter, granddaughter, and sister. Thereafter, the Hindu Women's Rights to Property Act, 1937 was one of the major legislations that conferred property ownership rights on women. This is the law that brought changes in the customary laws followed back then. This particular Act was sanctioned after a lot of dissents that was voiced against unfair women's rights, and once enacted, affected laws regarding coparcenary, partition, property, inheritance, and even adoption. The Act of 1937 also enabled widows to succeed along with the sons and take an equal share to that of the sons. However, even the passing of this law was not enough to call the rights equal for both men and women as the daughter virtually had no inheritance rights. The Hindu Succession Act was enacted in 1956 and somewhat focused on the provision of equality as enunciated by Article 14 of the Constitution of India. With the introduction of this Act, the provisions of limited property as propagated by the previous Hindu Women's Right to Property Act was abolished. This Act tried to uplift the status and position of women in society by giving them the right to inherit a share in their father's property. Through this Act, daughters were declared as legal heirs and were given the right to receive an inheritance in the separate property owned by the father (by way of notional partition). However, even though this Act, women could not inherit ancestral property and were given no rights over it by following the rules of survivorship. Only the sons were made coparceners by birth and had the right of share in ancestral property, thereby legally inheriting such property owned by the family. This provision continued the inequality between sons and daughters.

2. Position after 2005

The previous legislation, as stated above, were not serving the purpose of equality of rights between sons and daughters, and the need to amend this was observed. The Law Commission report in 2000 suggested reforms that were required to be made in the arena of women's rights to the estate. The Law Commission pinpointed all the sections and clauses that were biased towards males and thus recommended significant changes to be made.

The Hindu Succession (Amendment) Act 2005 , was enacted with the sole purpose of expanding women and daughters' rights to property and bringing them at par with the male members of the family. The landmark change that this amendment brought was to include daughters as coparceners. Thus, after this 2005 Amendment, the daughter, whether married or unmarried, has been made a coparcener by birth and has the same rights in the coparcenary property as that of the sons of the family. The daughter, now, has the same rights and even liabilities as that the son. Section 6 of the 1956 Act was amended to bring this effect. It also provided that the female members of the family could now also act as the Karta of the family, which was not possible due to the previous laws. Now, daughters were equally included as coparceners.

With the judgment which held that daughters have the right to coparcenary property irrespective of whether the father is alive or not at the time of the 2005 Amendment, the Supreme Court has further clarified the doubts regarding the retrospectivity of the Amendment Act 2005 and thus, has moved another step towards equality between men and women. The eminent change of making all daughters coparceners in joint family property has been of great significance for women, both symbolically and economically.
 

Why do you need a Lawyer?

The intricate process of understanding succession laws and figuring out your exact share in your family's ancestral property is a complex procedure that requires the services of a trained legal expert. Therefore, it is advised to engage the expertise of a lawyer who can guide you through the process and ensure your rights are protected at every stage. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert property lawyers. Hiring a lawyer can save you from a lot of hassle in the long run and ensure that you and your family reach a favorable outcome which reduces the risk of any litigation or friction in the future. This in turn helps save a lot of time, effort, and money for you and your family. Click here to read more about Women's Inheritance Laws for Hindus, Muslims, Parsis, and Christians in India.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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