Rights of Daughter in Property

In our country, the woman has always been viewed as an ideal also called an ultimate sign of culture, kindness, and sacrifice for her comforts for the sake of her children. Even as a wife she helps her husband and maintains the family. The woman has been given a position of pride in every religion. The provisions are there in every religion which are dealing with women’s rights and man’s duties to protect them. However, still, women are called a weaker section of our society. Our country works on the notion of the preamble which discusses equality and liberty. Equality is used in two senses. In one sense, it means the absence of all privileges and in the second sense, it is adequate opportunities laid open to all. The UDHR, clearly states that “All human beings are born free and equal in dignity and rights”. [1]

The legal provisions concerning women are intended to protect legal rights which are of great importance in women’s life. Even these legal provisions are based on progressive and logical ideas to give positive directions to the law so that women will benefit from them. On the other hand, there are certain old laws if they are discriminatory against the women, those laws should also be changed and reviewed from time to time with changing circumstances. Many of the developing countries are making laws to maintain and develop the financial facilities for women but on the other side in many societies laws are related to inheritance remain powerfully against the women. The unequal distribution of inherited property is one of the disparities against women. Even the UN’s report stated that “Women constitute half of the world’s population, perform nearly two-thirds of its hours, and receive one-tenth of the world’s income and less than 100th of the property.

Property is called an important asset which is important for the basis of living. A person is called as a sole protector of his property. Based on the law of succession it is determined who will be going to be the next owner of the property. In many countries, women face legal objections that prevent them to inherit the property. Only temporary rights are given to them which were also not given to them properly. There is always an inconsistency in the inheritance of women but the concern for safeguarding the rights and privileges of women has been stated in the Constitution of India. In modern society number of laws are amended for protecting and provide justice to women in inheriting the property in which they are having rights.

 It is the law of Succession which determines the members who will succeed the property after the death of that person. The meaning of “Succession” is the transmission of the rights’ obligations and the charges of a deceased person to his heir or being.  There are two types of “Succession” one is testamentary and the other is intestate succession. In case of testamentary person is free make will of his property and based on its distribution takes place. In intestate succession when a person dies without making a will it is the responsibility of the law of inheritance to determine who will be going to take the property of the person who is dead. The devolution of the property to the heirs after the death of the person is governed by the law of inheritance. 

But at present, the law of inheritance is governed by the Hindu Succession Act. This act was passed in the year of 1954 by the parliament of India. This act clearly states the uniform and comprehensive system of succession and it has been tried to provide an equal position to both males and females. As per the provisions of this act succession of the property take place if it is not a testamentary succession. Both sons and daughters have right in the property and both are treated as coparceners in the property. But before 2005 only son was allowed to have coparcenary property, not daughters. Even the amendment which came where daughters are also said to be a coparcener, in that case, the death of the father was also a question if he died before 2005 or after 2005.

Coparcenary Concept in Hindu Law

As per old tradition coparcenary consisted of 4 generations of male members in a family, which is starting from the old surviving member to the 4th young surviving member. The undivided coparcenary property belonged to all the members who are coparceners as per the law in which each coparcener has a share in the property of deceased by birth, and as per the rule of survivorship, the property is devolved. It is the smaller unit that jointly owns the property of the family. The person at the top of the line of descent is ‘Propositus’ and his three lineal descendants which are son, grandson, and great-grandson if they are alive.

The term coparcenary has been borrowed from common law, although its concept can be traced in Hindu law. A male is having a coparcenary right from birth as stated under Mitakshara school. The right to the newborn male suppose he is 5th descendant the right of coparcenary will be given to him only when the common ancestor dies. In other words, it means the coparcenary has succession up to 4 degrees of lineal descent. Even it is believed that only up to 3 degrees of male coparceners can offer spiritual ministration to their ancestors.

The female relatives of the deceased have been left without any protection or right in the property, these rights were solely vested for the men who were the part of coparcenary property. The woman was being excluded because she lacked the potency to perform religious obligations such as performing those funeral rites etc. When the act was framed these problems were being recognized with the challenge of making acts following the Mitakshara coparcenary system. The act was made by the Mitakshara coparcenary but more protection was offered to women than what was offered under traditional Hindu law.

Traditional Position and Codification in it

With the death of a coparcener in Mitakshara law, the interest of that person is given to the surviving coparceners. The property is inherited by the surviving sons by the virtue of being or becoming a surviving coparcener.  Section 6 was used to preserve the position under the Hindu Succession Act, 1956. Although a provision was added to preserve the interest of the daughter. If the deceased died and there are Class 1 female relative present which includes all female daughter, widow, mother, etc. or a male relative his interest would go to them by testamentary or intestate succession but not by survivorship.

Even the codified law also not able to address the discrimination which was against women in respect of share in the property. Although, some limited rights of inheritance were given to daughters in respect of interstate and non-coparcenary property in the Hindu Law of Inheritance (Amendment) Act, 1929 and the widows which are having the right to succeed the husband’s property was given in Hindu Women’s Rights to Property Act, 1937. Women were denied for the coparcenary status. But all such types of laws were repealed by the Hindu Succession Act, 1956. Even the amendments have been made in the act and the 2005 amendment was one of the major amendments made in respect of the women’s right in coparcenary property. As per the principle which has been enshrined in the constitution, the amendment tried to provide the position to the women by giving in coparcenary property also.

It was observed before the amendment that granting the daughter right in the portioned property doesn’t place them on the same level as that of male hires. So, there were only two ways by which equality could be truly achieved in this regard first by removing the concept of coparcenary or by making daughters a part of a coparcener. In 2005 based on CIT v. Govidram Sugar Mills these amendments were passed and the daughters were made a part of the coparcenary and also the same rights were granted the same as that of a male coparcener. Even with the amendment of Section 6, the women were also treated as Karta and the discrimination was removed to confer equal rights to them.

It was clear from this amendment that a coparcener daughter will have the right by birth in the same manner as that of the son. But the problem which was with this amendment was that it contained the proviso that it will do not apply to any disposition or partition which has been taken place before December 20, 2004, which was the day the amendment was introduced in the Rajya Sabha.

Verdict’s Significance

The Supreme Court on August 11stated that daughters, sons have an equal right to inherit the ancestral property. The three-judge bench of Arun Mishra, SA Nazeer, and MR Shah, JJ has clearly stated that the father coparcener doesn’t need to be living when the Hindu Succession (Amendment) Act, 2005 came into force. Many courts used to take a view that only a living coparcener’s daughter would get the benefit of the new law and it was used to be argued that if the man had died before 2005, his interest would not have passed on to his daughter.

The Court was dealing with the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended in 2005 this case was of Vineeta Sharma v. Rakesh Sharma [2]the Court stated in this case that Section 6 of the Hindu Succession Act, 1956 confers the status of coparcener on daughters born before or after amendment in the same manner as a son with the same rights and liabilities, (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December 2004, (iii) Since the right in coparcenary is by birth, father coparcener doesn’t need to be living as on 9.9.2005 (Entire law on family settlements under Hindu Law (HUFs) explained) “.  

In respect of verdicts passed in Parkash v. Phulvati [3]the Court stated that “that Section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. This Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the un-amended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to Section 6(1) or Section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of Section 6 have been held to be prospective”.

In the case of Danamma v. Amar [4]The Court stated that “the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of Section 6 came into force. The daughters, sons, and the widow have given 1/5th share a piece”.

The court clearly stated that the coparcenary status of the daughter is created by birth and it is not dependent whether the father is alive or not a daughter has the same status as that of the son when she is born. This verdict was ruled both the above judgments which were passed and removed all the confusion which were there regarding the coparcenary of the daughter in the property and this was passed on 11th August 2020. Now both the daughter and son have equal rights in the property.

Conclusion

It is clear that daughters used to have partition rights but later on after amended they were also made coparcener but the question of doubt was also there as all state courts used to apply the amended differently. Some courts used to interpret that daughter will be treated coparcener if father was alive after 2005 and the daughter is alive too or if the daughter is born after 2005 then it will be applicable. But the Supreme Court on 11th August 2020 cleared from his judgment that daughters will have equal rights as that of the son and they are coparcener as that of a son having the same rights in the property.

References

  1. https://blog.ipleaders.in/coparcenary-property-post-amendment/#_ftn32
  2. https://indiankanoon.org/doc/67965481/
  3. https://itatonline.org/archives/vineeta-sharma-vs-rakesh-sharma-supreme-court-larger-bench-i-s-6-of-the-hindu-succession-act-1956-confers-status-of-coparcener-on-daughters-born-before-or-after-amendment-in-the-same-manner-as-son/
  4. https://www.scconline.com/blog/post/2020/08/11/daughters-have-coparcenary-rights-even-if-parents-died-before-the-hindu-succession-amendment-act-2005-came-into-force/

[1] UDHR (The Universal Declaration of Human Rights) Preamble

[2] 2020 SCC online SC 641

[3] (2016) 2 SCC 36

[4] (2018) 3 SCC 343

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