Daughter’s Right over Father’s Property

Daughter’s Right over Father's Property

Right of Daughter’s over Father’s Property under HINDU LAW

It begins from the time when the HSA (Hindu Succession Act, 1956) was enacted, In India, it was always a point of dispute in the Hindu Undivided Families i.e., the succession of the father’s property. Even as per our Dharmashastras the status of the Hindu women was always subjected to males of the family. Then, in 1956 the Hindu Succession Act was enacted; the legislators of this law had the belief that the daughter is part of another family after her marriage, and hence, they should not have the right to inherit anything from their father’s property. Further legislators believed that daughters didn’t need for giving equal rights to daughters like son in the coparcenary property of the father.
It’s better to get brief of all such terms before to clarify this topic:-
1. The Hindu Succession Act, 1956 – The Act enacted by the Parliament of India to amend and codify the law on the intestate or unwilled succession of property among Hindus, Buddhists, Jains, and Sikhs i.e. this Act only deals with the intestate succession of Coparcenary property.
4. Important Case Laws: Prakash and others v. Phulavati (2016), Danamma v. Amar (2018), and 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.

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Legislation points:
1) Before the advent of Hindu Succession Act, 1956 there were Customary and Shastric laws prevalent in society, these laws differed with the passage of region to region. Through these laws govern Hindus and others on basis of caste system in some regions; which caused the diversity in the law.
After some time, scholars found different schools according to their varied interpretations of Smritis regarding succession, like as Mitakshara School and Dayabhaga School.

2) The Hindu Law of Inheritance Act, 1929, An Act to change the order in the case when certain heirs of a Hindu male dying intestate are entitled to succeed to his estate. This act brought the woman into the chain of inheritance for the father’s property. This act brought the rights of inheritance and imposed them on the three female heirs. Such as- (S1) son’s daughter, (S2) daughter’s daughter, and (S3) sister, this provides the restrictions in the limits on the inheritance.

3) The Hindu Succession Act, 1956, the act to amend and codified the law on interstate or unwilled the succession rule among Hindus, Buddhists, Jains, and Sikhs i.e. this legislation deals only for the intestate succession.

Section 6 of the Hindu Succession Act, before or after the 2005 amendment:
Before the 2005 Amendment:-
• Section 6 of Hindu Succession Act, stated that “Transfer of the interest in coparcenary property at the time of Hindu male dies after the commencement of this Act, the man who dies, his interest in the property shall transfer by survivorship upon the surviving family members of the coparcenary and not in accordance with this Act”, having at the time of his death an interest in a Mitakshara coparcenary property,

Due to this enactment of this act, the females were not considered as a member of Mitakshara coparcenary property because they were not considered a lineal descendant of the coparcener or of the same bloodline in the family. Only the lineal descendants of the coparceners through survivorship rule were considered to be the coparceners in the family, there were no widows, siblings, or any other heirs of the deceased coparceners were given any right to inherit from the ancestral property.

Gender Discrimination in Coparcenary Property: After a huge struggle over around 50 years, the Parliament passed the 2005 amendment to uproot gender discrimination in the inheritance process of coparcenary property. As we have a view above the preliminary Amendment Act 2005 of the Hindu Succession Act, 1956 was having discriminatory provisions on the grounds that women do not include as coparceners to inherit the ancestral property since birth like the sons.
A coparcenary property is a property of Hindu Undivided Family which had inherited from his father or grandfather or great grandfather. This term used for every person who inherits the ancestral property by his birth. This act is assumed as this was enacted to codify the Hindu Law for the very first time.

• Modifications after the 2005 Amendment in the Act: By the amendment the all provisions washout which barred the daughters form coparcenary property. By this, the daughter also becomes the coparcener like a son since birth. The property of coparcener shall be allotted to the daughters like a son when the coparcener dies. Now the Daughter is also entitled to demand the partition of the Hindu Undivided Family. The Daughter is also having the right to dispose of her coparcenary property through her will. If the female coparcener died before the property partition, then her children would be eligible for the allotment of the partition before her demise.
Ambiguity over the applicability of Section 6:
In the case of Prakash and others v. Phulavati (2016), the Supreme Court stated that “As On 09/09/2005 irrespectively of the date of birth of daughters, the living daughters of living coparceners rights are applicable only.”
In a simple way this means that if the coparcener or father died prior to date 9 Sep 2005, the daughter who is living would have no right to coparcenary property.
* In the case of Danamma v. Amar (2018), the Supreme Court held that in case if the father passed away prior to date 09.09.2005 -the date of the amendment and if a prior suit for partition is pending of male coparcener, this case clarified and overruled the Prakash and V. Phulavati case and held the female coparceners will be entitled to a share.

* Now the question raised about to rely on which case of Supreme Court and how the property of coparcenary will be transferred.

The Hindu Succession Act, 1956 amended to make two major changes:
This act amended mainly the provision which excluded the right of daughters from coparcenary property. And also omitted Section 3 of the Act which a female heir disentitle to ask for partition with respect of coparcenary joint family until the male member choose to divide their respective shares over the property.
In the latest landmark judgment of Vineeta Sharma v. Rakesh Sharma 2020, the Supreme Court Bench ruled that Daughters have an equal right in the Parental Property as like the son, even in the case if the father passed away before the Hindu Succession Amendment Act 2005. This is also ruled in this case that the rights of the living daughter of living coparceners as on date 9/9/2005, even of when such daughter is born.
Hence, the recent judgment held that the 2005 amendment act has been declared as retrospective nature and provide equal rights to the daughters over the ancestral property of parent even if the father of female coparcener died before to 9th Sep 2005.

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