“Gender equality is critical to the development and peace of every nation.”

— Kofi Annan

The old Hindu Mythologies, Dharma shastras had been subject to male dominance and did not recognize the rights of the women over the property of her father. The woman was believed to be part of another family and considered her right on the property named after her husband. Thus, had no right to inherit anything from her father. However, after the amendment act of 2005 provided equal rights to the daughters in the coparcenary property of the father.

The Concept of Coparceners:

The Hindu Undivided families (HUF’s) consist of the members and the coparceners. The members of the Hindu Undivided Family are entitled to be maintained by the family but have no inheritance rights as of coparceners. For example, a wife is considered to be a member of her husband’s family. It is their right to get maintained by their family but not allowed to request their partition and inheritance rights. But on the other hand, coparceners get the right of inheritance to their father’s property by their birth itself. They have the right to claim the partition. The coparcener of a HUF has rights limited to three degrees of lineal descendants. For example, the children born in the family get the coparcener rights. Children born in wedlock as coparceners in a Hindu Undivided family have rights such as right in the ancestral property by their birth, right to survivorship means the right to divide the share among themselves if one of the coparceners dies and can transfer the share of the property whomever they wish.[1]

A landmark decision:

The judiciary continuously made progressive steps while providing equal rights to women and daughters of our Hindu Male dominated society. The principle of equality is showing a drastic change in uplifting society and moving towards a change. We can also say that the judiciary is more women-friendly towards interpreting the successive law. One of the major landmark judgments was passed in the case of Vineeta Sharma vs. Rakesh Sharma, (2020) 9 SCC, where on 11 August 2020 the supreme court believed that daughter and son have equal coparcenary rights in Hindu Undivided Family. This decision was passed by a three-judge bench where the honorable court clarified that the daughter has coparcener rights by their birth, and it is not required that father has to be alive at the time the amendment to the Hindu succession act 1956 was passed. This 2005 amendment coined the equal rights of both sons and daughters of coparceners. Before the 2005 amendment was passed, the law only recognized these coparcenary rights granted to male members that are the sons and grandsons. Even though the amendment granted equal rights to daughters as sons, however, the honorable court contradicted its statement by providing equal status as regards inheritance rights only to those daughters whose fathers as coparceners were alive at the time when the amendment act of 2005 was passed. This was decided in the case of Prakash Vs. Pulvathi 2016.[2]

Further the honorable supreme court in the case of Dhanamma vs. Amar 2018 contradicted its statement and granted the rights to daughters in their father’s property even though their father was not alive and passed away in the year 2001 when the 2005 amendment had not been passed. After various judgments and order the honorable court clarifies the issue of retrospective applicability of the amendment and made the applicability of the coparceners right to all the daughters irrespective of the death of the father and thus the judgment eliminated the discrimination between the rights of their daughters irrespective to any dates and gender.

Self-acquired property and the ancestral property

The property purchased by an individual through the share of ancestral property or by his resources is known as self-acquired property. The owner of the property has all right to dispose and transfer of the property by way of gift, sale, and will. Legal heirs are not allowed to raise objections against the transfer of self-acquired property. The ancestral property is the property inherited by the Hindu Undivided Family. The rights over ancestral property are granted by birth. Further after the partition of the ancestral property between the legal heirs, the shared property converts to a self-acquired property for up to three generations. It will cease to be an ancestral property. A father has the right to not transfer or will out his property to children in the case of self-acquired property, but it will be invalid in the case of ancestral property. Even daughters are entitled to claim right over ancestral property of their father after the amendment act of 2005 which referred to daughters as a coparcener in HUF. Moreover, the property acquired from the maternal side does not qualify to be an ancestral property and remains a self-acquired property. Although Karta, the head of the Hindu Undivided family has the right to manage the family property and assets when it comes to the partition and ownership rights of the property, each coparcener including daughters has the right to get their share transferred and right to ownership.

Further Talking about the gift of the property from father to son, so in a recent judgment, the honorable supreme court ruled that the gift of the property from father to son cannot be regarded as ancestral property. The granddaughters and grandsons are not allowed to claim their right over the property gifted by the grandfather to the father and the father has the right to dispose of the property according to his will. Since a gifted property is treated as self-acquired property. Hindu Succession act 1956 also talks about a disqualified legal heir under section 24 to section 28. The disqualification is known as ‘Murdered Disqualified’. If any individual murders his father, then they are disqualified to get the share from the property upon succession.

History and the strings attached for female inheritance right in Hindu Succession Act 1956

Before the Hindu succession act 1956, different customary laws prevailed varying from region to region and caste to caste. There was a great diversity of law. The law was the interpretation of Manu smriti and the Dharma shastras. Different opinions while interpreting the Smrities gave rise to schools such as Mitakshara school and Dayabhaga school. Further, the first legislation was passed on Hindu Inheritance in the year 1929. The act considered daughters in the picture of inheritance rights. The right of inheritance at that time was restricted to three females referred to as a sister, son’s daughter, and daughter’s daughter but they had restrictions on the survivorship rule. In the year of 1956, after the independence, the parliament of India enacted its first legislation regarded as the Hindu Succession Act 1956 to deal with estate succession among Hindus, Jains, Buddhists, and Sikhs.

Before the amendment act of Hindu Succession Act, 2005 was passed, the families which followed the inheritance coparcenary rights of Mitakshara school provided the inheritance right to the male descendants. The female descendants were not considered as the lineal descendants of the coparcener as they were not recognized from the same bloodline. Since, after the long run, in the year 2005, the concept of equality overruled in the inheritance rights of coparceners. The amendment removed the discriminating effect on the ground that women are considered as coparceners and have the right to inherit property from their father or grandfather.

Changes made after the 2005 Amendment Act

The amendment act 2005 highlighted many gender inequalities which prevailed in the previous act and gave women equal rights in Hindu Mitakshara coparcenary property. The act amended the provisions which excluded the daughter from coparcenary rights providing daughters to be the coparceners as same as a son by their birth itself. The ancestral property will equally be divided at the time of partition and daughters were entitled to demand a partition of Hindu undivided family. Daughters were also entitled to dispose of their self-acquired property according to their will and if any female dies before the partition, then her children are entitled to get her share assuming that partition has taken place before her death. But the confusion which arose due to different opinions by the honorable supreme court was that whether daughters are entitled to get property whose father died before the amendment act of 2005, which was then resolved in another case of 2018 which gave women the right to claim property even though their father was not alive at the time of amendment.[3] The second major amendment omitted section 3 of the succession act which disentitled female heirs to get partition which was occupied by the joint family until male heirs choose to divide their respective share.

Conclusion:

Hence according to the recent judgment, the daughters are entitled to get right over the property of the father no matter if their father died before the amendment act. The same rights and liabilities are given to sons and daughters under the provision of section 6 of the act. The widows, siblings, or any other female heir of the coparceners were entitled to the right over the ancestral property. The final move by the honorable court eliminated the discrimination of rights between the daughter and son to their inheritance of the property under the Hindu Succession act.

[1] Advocate Chikirsha Mohanty, Sons and Daughters Rights in Father’s Property, Law Rato, Aug 23,2021,

https://lawrato.com/indian-kanoon/property-law/sons-and-daughters-rights-in-fathers-property-125

[2] Shubham Sharma and Aarushi Rathore, Daughter’s right to property, The Daily Guardian, Aug24, 2021, https://thedailyguardian.com/daughters-right-to-property/

[3]Supreme Court rules that daughters have equal rights in their father’s property, Lexology, Aug25,2021, https://www.lexology.com/commentary/private-client-offshore-services/india/cyril-amarchand-mangaldas/supreme-court-rules-that-daughters-have-equal-rights-in-their-fathers-property

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