DAUGHTER'S RIGHT ON PROPERTY

The status of Hindu women had always been subjected to male members of the family even in
accordance with the Dharmashastras. So, when the Hindu Succession Act was enacted in 1956; the
legislators didn’t actually felt any need for giving equal rights to daughters in the coparcenary property
of the father, due to their belief that the daughter will be a part of another family after her marriage and
thus should not have right to inherit anything from her father’s property.

‘A son is a son till he gets a wife, but a daughter is a daughter all her life.’ - A three judges bench
headed by Justice Arun Kumar Mishra reaffirmed this when a question arose- Whether Hindu Succession
(Amendment) Act, which gave equal rights to daughters in ancestral property, have a retrospective
effect.

TIMELINE :

Before 1956 Act,

The Shastra's and the customary law varied from region to region governed by Hindus.

Sometimes it varied in the same region on a caste basis.

After 1956 Act ,

Ancestral property to be developed by survivorship rule only.

Only males were the coparceners up to 3 generations.

Women were not recognised as coparceners.

2005-2015 (After 2005 Amendment Act)

Amendment to Section 6.

Survivorship Rule abrogated.

Daughters are not recognized as coparceners.

Succession is either "Testamentary" or "Intestate succession".

2015 Prakash vs. Phulavati

Father has to be alive on the date of enforcement 2005 amendment.

Subsequently the daughters can claim bebefit under 2005 Act.

The father may had died before 2005, yet daughters will ger equal share.

Daughters are entitled to his coparcenary propety.

2020 Vineeta Sharma vs. Rakesh Sharma

Disagreed with the 2015 judgement.

Father need not be alive on the date of enforcement of 2005 amendment.

String of Legislations:

Before the Hindu Succession Act, 1956 Shastric and Customary laws, that varied from region to
region, governed the Hindus and sometimes it varied in the same region on a caste basis; this led to
diversity in the law. So, there were even different schools founded on different interpretations of Smritis
for matters relating to succession such as Mitakshara and Dayabhaga School.

The Hindu Law of Inheritance Act, 1929 was another piece of legislation and the earliest. This was
although, the act that brought the woman into the scheme of inheritance. This legislation imposed the
rights of inheritance on three female heirs such as son’s daughter, daughter’s daughter, and sister, a
limited restriction on the survivorship rule.

The Hindu Succession Act, 1956 is an Act of the Parliament of India that was enacted to amend and
codify the law on intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs i.e. the Act
deals only with intestate succession.

Section 6 of Hindu Succession Act, (before the 2005 Amendment) elucidated “ 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”.

According to this, no female was a member of the Mitakshara coparcenary property as they were
considered of not being a lineal descendant of the coparcener or from the same bloodline. The widows,
siblings or any other heirs of the deceased coparceners were not given any right to inherit from the
ancestral property, only the lineal descendants of the coparceners through survivorship rule were said to
be the coparceners.

After a long-run process of around 50 years, the Centre in 2005 passed the amendment Act to
eradicate gender discrimination in coparcenary property. The Pre- 2005 Amendment Act or the Hindu
Succession Act, 1956 was discriminatory on the grounds that women were not considered as
coparceners to inherit the ancestral property since birth like the sons. A coparcenary property is a
property inherited by any Hindu from his father or grandfather or great grandfather. A coparcener is a
term used for any person who inherits the ancestral property by birth. This Hindu Succession Act was
enacted to codify Hindu Law.

The Central Government raised objection to the idea of giving retrospective operation to the 2005
amendment law because a coparcener in Hindu family law has a right to seek partition. For the said
reason, the law fixed a cut-off date of December 20, 2004 to avoid reopening of any settlement or
partition decree prior to this date. The court gave acceptance to the 20th December, 2004 (date) as cut-
off but focused on the fact that if a daughter seeks partition or a share, the same cannot be denied on
the basis of an oral family settlement but on a final decree of a court or a registered family settlement. If
an oral settlement is to be presented, the bench held, it has to be supported “by public documents.”

Hindu Succession (Amendment) Act 2005: Section 6

The Hindu Succession (Amendment) Act 2005 is very crucial as it addressed various gender
inequalities in the previous act and gave equal rights to daughters in Hindu Mitakshara Coparcenary
Property.

Changes after the 2005 amendment

· The act amended the provision which excluded daughters from coparcenary property.

· Daughter of a coparcener shall birth become a coparcener in the same manner as the son.

· Coparcener property shall be allotted to the daughter as is allotted to sons if a Hindu dies.

· A daughter is entitled to demand a partition of the HUF.

· A daughter is also entitled to dispose off her share in the coparcenary property at her own will.

· 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.

Confusion over applicability of Section 6

In the case of Prakash and others v. Phulavati (2016), the apex court opined that “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.” It simply means that If a coparcener(father) had
passed away prior to Sept 9, 2005, the living daughter of the coparcener would have no right to
coparcenary property in such case.

The Supreme Court in the case of Danamma v. Amar (2018), held that if the father passed away prior
to date 09.09.2005 (the date on which amendment came) and a prior suit is pending for partition by a
male coparcener, the female coparceners will be entitled to a share (Although same was not entitled in
Phulavati’s case).
 These two cases created an era of confusion on the interpretation of Section 6 of the Hindu
Succession (Amendment) Act 2005.

The Amendment Act aimed at making two major amendments in the Hindu Succession Act, 1956:

Amended the provision which excluded the right of daughters from coparcenary property.

Omitted Section 3 of the act which disentitled a female heir to ask for partition in respect of a dwelling
house which is wholly occupied by a joint family, until the male heirs choose to divide their respective
shares.

In the recent case of Vineeta Sharma v. Rakesh Sharma 2020 the bench the Supreme Court ruled that
daughters have an equal right in the parental property the same as the son, even if the father died
before the Hindu succession (amendment) act 2005.

It also held that the rights under the amendment are applicable to living daughters of living coparceners
as on the date 09.09.2005, irrespective of when such daughters are born.

Conclusion
Henceforth, according to the recent judgment passed, the 2005 amendment Act has been declared
retrospective, and daughters are given equal rights over the ancestral property of their fathers even if
the father of the daughter died prior to September 9th, 2005.