Headline of Article
Daughter’s right in Coparcenary property in India
To the Point
At the time of enactment of Act the Hindu Succession Act 1956. There is no provision regarding the daughters’ coparcenary right in her father’s property Because people think after the marriage daughter is part of another family But there is discrimination on the basis of Article 14.
However, Hindu Succession (Amendment) Act, 2005 provided the daughters are also ha Coparcenary right in her father’s property same as son. After the supreme Court give many landmark judgments regarding shore up to daughter’s coparcenary right. This amendment rescind the discrimination against the daughter.
Once Supreme Court said in his judgment “ONCE A DAUGHTER IS ALWAYS A DAUGHTER”.
The legal Jargon
1.Coparcenary
According to Hindu Succession Act 1956 a person who obtain legal right in property by birth.
2.Succession
Transfer of property, assets , duties or obligation to legal heir after the death of ancestral.
3.Ownership
The state of being owner; right to own; exclusive right of possession; legal or just claim or entitle; proprietorship.
4. Discrimination
Treated some class of people unfair and prejudicial on the basis caste, sex, gender, place of birth or age
5.Partition
Division of joint family into two or more part. It is govern by dayabhaga and mitakshara school.
The proof
Before the amendment of Hindu succession Act 2005 there was no any coparcenary right of daughter in fathers property Because peoples ideology after marriage she will part of any other family. So woman has only absolute ownership of her own property. And after the marriage wife not count as coparcenar because she is not direct bloodline of ancestral. After the discrimination towards women on basis of gender and exploitation of fundamental right ask for the amendment in Hindu Succession Act, 2005.
Then there is end of discrimination upon women on the basis of Mitakshara school this school also called heritance by birth. Lawmaker realized to make law which is gender-neutral. Then on 9 September 2005 Hindu Succession Act 2005 came into existence. This Act protected Article 14 of women and end the gender discrimination.
Section 6 of Hindu Succession Act also amended it stated “on and from commencement “of the amendment act 2005, said daughters has also a coparcenery right by birth same as the son.
Abstract
Before the commencement of Hindu Succession act 1956 Hindus were governed by customary law which was different place to place. But after the many year legislation made the Hindu Succession Act 1956 but in that Act there is gender discrimination and oppression the right of equality Article 14 of constitution of India for the daughters copercenery right. After the 50 year of Act is amended and abolish gender discrimination after the case Prakash and others Vs Phulavati and others(2016) and apply to the living daughters of living coparcenar as 9th September 2005 irrespective of birth Again in case Amar Vs Damon (2018)if Daughter died before 2005,then also daughters has equal share in property like son and entitled her coparcenary property and third landmark judgment of supreme court Vineeta Sharma Vs Rajesh Sharma (2020) Court said”once a daughter is always a daughter”. Father need not to alive on the date of enforcement of 2005 amendment.
Section 6 of Hindu Succession (Amendment)Act 2005
Section 6 of this act after amendment play very crucial role and prohibited the gender discrimination and oppression of right of equality of women it provide equal to daughter as well as son in caparcenary property.
After the Amendment
- The law amended the provision that excluded daughters from co-ownership.
- A daughter of a coparcener is born to a coparcener in the same way as a son.
- Coparcenary property will be given to daughter as well as to sons if a Hindu dies.
- Daughter is entitled to claim HUF partition.
- The daughter is also entitled to dispose of her share of the joint property as she wishes.
- If the female coparcener dies before the partition, then the children of such coparcener will be entitled to the allotment provided the partition took place immediately before her demise.
Case laws
- Prakash and others Vs Phulvati and others(2016)2SCC36
Fact
The respondent (according to Supreme Court case) first time filed a suit before the Additional Civil Judge (Senior Division), Belgaum (“Trial Court”) for partition and separate possession of 1/7th share in certain immovable properties (“Ancestral Properties”). ) and 1/28 share in other real estate. Ancestral traits were inherited by the Respondent’s father. . The respondent claimed that upon the death of her father on 18/02/1988, the respondent inherited the property from her ancestors. The Complainant (according to the Supreme Court case) contested that the Respondent could only claim the self-acquired property of her late father and not the property of his ancestors. The action was filed in 1992 and the amendment to the Act became effective on September 9, 2005. During the pendency of the action, the defendant amended its action to claim its share under the amendment to the Act. The court partially allowed the claim. The respondent, affected by the decision of the court of first instance, appealed to the High Court.
Issue
1. Is the amendment still relevant if the respondent’s father died after the Act came into force?
2. Does the amendment to the law apply to partitions made without a court order?
3. It is possible to apply the amendment to the law retroactively?
Judgement
A two-judge bench held that the rights of coparceners extend to the surviving daughter of the surviving coparcener. If the father died before 09.09. 2005, the daughter would not have any right to co-ownership in that case. the father had to be alive on the date of enforcement of the 2005 amendment. Subsequently, the daughter can apply benefits under the 2005 Act. Both the father and the daughter must be alive on the effective date of the Act. However, if the father was not alive on or before the date of the amendment to the law, the daughter cannot claim ownership rights.
- Danamma Vs Amar singh(2018)
Fact
In this case, One G, the proprietor of a joint Hindu family, died in 2001 leaving behind a wife, two daughters and two sons, R and V. After the death of G, the son of R filed a civil suit for partition and separate possession in respect of the properties listed in the suit , which state that these are common family characteristics. In this suit, though the plaintiff admitted that the two sons and the widow of G were jointly in possession of the said properties as co-tenants, he denied that the two daughters of G were co-sharers in the said joint family on the ground that they were born before the enactment of the Hindu Succession Act of 1956 (hereinafter referred to as the “HS Act”). It was also alleged that the daughters were married and had received gold and money at the time of their marriage, giving up their share of the joint family property. However, the daughters challenged the suit claiming that they were also entitled to a share of the joint family property. The trial court decided the suit that the daughters were not entitled to any share as they were born before the passing of the HS Act and therefore could not be considered co-parceners. The court of first instance also rejected the alternative objection that the daughters acquired a share in the said properties after the amendment to the HS Act, see the amendment to the Act from 2005. The said opinion of the court of first instance was upheld. As the High Court confirmed the decree of 9/8/2007 passed in the suit, the daughters appealed. As they allow the appeal, the case lies before the Supreme Court
Issue
- Whether Appellant ( daughter of D) could denied to take share on the ground of they not born before the enactment of Act and cannot treated as coparcener ?
- Whether after passing the Hindu Succession(Amendment) Act 2005 daughter is also entitled for the property same as the son and also claim the equal share same as son?
Judgement
It is the landmark judgement of Supreme court in this case court recognize the mitakshara school and changed under the gender inequalities.
In this case the Hon’ble Supreme Court of India stated that if the father is a co-parcener who died before 9th September 2005 and the partition by the male coparcener was discussed in the previous dispute, then the female coparceners are entitled to share.
The court stated that the provisions of Section 6 of the amendment act retrospectively and grant the daughter absolute rights to be an accomplice from birth. This decision was contrary to the judgment given in the Phulavati case. Both the above judgments were thus in conflict with each other and led to contradictions on the issues relating to the complicit rights of the daughter in inheriting the joint property of her deceased father. This led to an appeal being granted in the Supreme Court of India.
3. Vineeta Sharma Vs Rakesh Sharma(2020)
s The supreme court on August 11,2020 ruled the daughter are entitled the equal property right even if they were not born at the time of the 2005 amendment to the Hindu Succession Act,1956 and even if the father died before to the coming into force of the Hindu Succession(Amendment) ACT, 2005.
Judgement was delivered by 3 -judge bench of the supreme Court Justice S Abdul Nazeer, Arun Mishra, and MR shah.
- The Supreme Court ruled that the 2005 amendment would have retrospective effect in conferring right on daughters who were alive at the time of the amendment, even if they were born prior to it.
- The court also stated that daughters’ right over the paternal property all stand even if the father died prior to the coming into force of the Hindu Succession(Amendment) Act,2005.
- Justice Mishra stated “DAUGHTER REMAINS A LOVING DAUGHTER THROUGHOUT THE LIFE” and they shall remain a coparcener throughout life irrespective of where the father is alive or not.
- The Judgement was pronounced by Justice Arun Mishra, who while reading out the operative part of the judgement said that Daughter have to be given an equal share of coparcenary rights in the share of the property like the son.
Conclusion
In the unequal environment we live in India, we need fairer and equal laws in all areas. The 174th Law Commission Report brought out various problematic and patriarchal norms that were created by laws as part of customary practices. Hindu law relating to succession to property was first codified by the Hindu Succession Act 1956. It dealt with the transfer of interests in the ancestral and self-acquired property of a Hindu dying intestate. However, the said Act was discriminatory on the basis of gender inequality and suppression of the fundamental right to equality enshrined in Article 14 of the Constitution of India.
The property is divided equally among all legal heirs, including daughters and sons, as per the Hindu Succession Act, 1956.
After 50 years, the Act is amended to abolish discrimination based on sex after the case of Prakash and others vs Phulavati and others (2016) and applies to the surviving daughters of a living co-shareholder from 9 September 2005 irrespective of birth Again in the case of Amar vs Damon (2018) if daughter died before 2005 then daughters also have equal share in property like son and are entitled to their joint property and third landmark judgment of supreme court Vineeta Sharma vs Rajesh Sharma (2020) Court said “Once a daughter always a daughter”. The father must not have been alive on the effective date of the 2005 amendment.
It also removes the stigma that a son is absolutely necessary to carry on the legacy and will help reduce female feticide to some extent. However, even after the adoption of the legislation, many heirs do not claim their share due to lack of information. Along with sound legislation, greater legal literacy is therefore also needed.
FAQ
1.What is the latest ruling on daughter’s right to property?
In a landmark judgment that sought to ensure a daughter’s “right to equality” in a Hindu undivided family, the Supreme Court ruled that women would have a joint or equal right to family property from birth, regardless of whether her father was alive or not as of September 9, 2005.
2. Can a father dispossess his daughter from his property in India?
No, a father cannot disinherit his daughter from his property in India in respect of ancestral property or acquired from ancestral money. However, if the property is self-acquired, the father can divide it according to his own wishes.
3.What is the time limit for claiming ancestral property by a daughter?
The deadline for claiming ancestral property is around 12 years.But there must be court accept the th reason of delaying the claim. If you want to file a civil action to restrain the sale of your ancestral property, you must do so within three years of the sale
4.Can a married daughter claim her father’s property?
A married woman will not be a member of her parent’s HUF after marriage but will continue to be an accomplice. He can apply for distribution of assets in HUF.
5.Is it obligatory to give property to daughter?
This means that she automatically acquires legal title to the property from birth without needing the approval of male relatives such as her uncle’s son. According to this law, both sons and daughters have an equal share in their father’s property.
6. What is the procedure for daughters to claim their share of property in India?
The procedure for daughters to claim their share of property in India involves filing a partition suit in a civil court, which then determines and distributes the property among the heirs. In such cases, it is advisable to seek legal help.
Author : Aastha Srivastava Baba Shahab Bhim Rao Ambedkar University(Central University), Lucknow.
