DAUGHTERS’ RIGHT TO PROPERTY

The daughters’ right to property has always been a matter of concern in India, especially in Hindus. Prior to 1956, different regions in India had different customary laws (laws relating to inheritance, succession, etc.). In 1956, the Mitakshara School of Hindu law was codified as the Hindu Succession Act,1956. This act governed the succession and inheritance of property. This act is applicable to Hindus, Buddhists, Sikhs and Jains. The only drawback of this Act was that it only recognised males as legal heirs of the property. The females could not be the co-parceners in the property, whether she was the daughter or the widow of the owner of the property.

The property of a person can be divided into two major groups. One is the ancestral property and the other is the self-acquired property. The property that is acquired by a person during his lifetime is classified as ‘self-acquired’ property. There is no confusion as to how this property will be divided, because as per Section 30 of the Hindu Succession Act, 1956, the partition of this property is governed by the wish of the owner through his will or testament. He can give away this property to any person whether to his own daughter or to any other random person. There is no control of the law on this property. But the complication arises in the division of ancestral property. This property is not divided by the will of the person. Rather, it is governed by the Hindu Succession Act.

There was an amendment in 2005 in The Hindu Succession Act. Before this amendment of 2005, co-parceners were only the lineal descendants of the owner of the property. It clearly indicated that the sons of succeeding three generations were the only co-parceners of the property and if any of these people die, the next male in-line becomes the co-parcener. This rule was called the Survivorship Rule, stated in Section 6 of The Hindu Succession Act,1956. The amendment of 2005 repealed this rule of Survivorship and introduces a new rule, called the Testamentary and Interstate Succession Rule.

The testamentary rule applied to a self-acquired property which was governed by the will or the testament of the person, whereas the Interstate Succession Rule divided people into four classes. Class one included widow, sons and daughters. So after the death of a person, the ancestral property had to be divided equally among the people of Class one. After this amendment, daughters were also co-parceners to the property, and they had this right of co-parcener since birth.

This amendment was enforced on Sept 9, 2005, and it did not have a retrospective effect, i.e., if any father had died before this date, then his daughter did not have equal share in the ancestral property, unlike the sons. It was necessary for the father to be alive on the enforcement date, i.e., Sept 9, 2005.

There was continuous questioning on the nature of the amended Act. In the case of Prakash v Phulavati[1], the two-judge bench, headed by Justice A.K. Goel, was of the opinion that it is necessary for the co-parcener and the daughter to be alive on the enforcement date of the amended Act to have her share in the property. Two years later, in the case of Danamma v Amar[2], it was held that even if the father was not alive on the date of enforcement of the amendment, the daughter would still have rights over the property. Since this case was also decided by a two-judge bench, there was an ambiguity as to which one of the two judgements should be followed. So the case of Vineeta Sharma v Rakesh Sharma(2020) was heard by a bench of three judges, headed by Justice Arun Mishra.

The judgement of this case, “Once a daughter, always a daughter... a son is a son till he is married. The daughter shall remain a co-parcener (one who shares equally with others in the inheritance of an undivided joint family property) throughout life, irrespective of whether her father is alive or not”, made it very clear that this law has a retrospective effect.

The classic Shastric Hindu law excluded the daughters from being co-parceners, and the daughters had been subjected to this inequality since time immemorial. The injustice has been finally done away with this 121-page judgement on Aug 11, 2020.




[1] Prakash v Phulavati, AIR 2016 SC 769

[2] Danamma @ Suman Surpur v Amar, AIR 2018 SC 721

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