Its as much a tradition as its ironical that under the Hindu Law women after marriage and even before marriage were denied rights to claim their shares in both movable and immovable ancestral properties. Nonetheless, there were special cases of women getting inheritance rights; the right, however, was limited to enjoying the property.
With India’s independence, the Hindu law in regards to property recognizes and the spinoff effect was the Hindu Succession Act, 1956. Women were able to leverage this Act to establish rights of women in India to property , or inheritance rights in a Joint Hindu family got the much-awaited recognition. Nonetheless, a daughter even then did not get the formal recognition of a Coparcener.
The two schools of Hindu Law In India are 'Mitakshara' and 'Dayabhaga'. The followers of Dayabhaga School is not as widespread as Mitakshara School. The major difference between the two is in regards to Inheritance and Joint Family system.
Under the Mitakshara Law property devolves in two ways, namely, Survivorship and Succession. The Survivorship rule is applicable to the Joint Family Property whereas Succession rules apply to distinct property of the deceased with full ownership. In Dayabhaga School, however, there is only one devolution mode and that is Succession.
All members of Joint Hindu Family are lineally descended from the same ancestor including their wives and spinster daughters. The scope of a Hindu Coparcenary, though, is much narrower in comparison with the Joint Family including only specific people including sons, grandsons, and great-grandsons who have acquired an interest by birth in the coparcenary property.
The cardinal rule of Mitakshara School is that inheritance of property by a Hindu from father and ancestors is essentially deemed as ancestral property which means heritage runs in the family for generations. A Hindu inheriting property from other relatives is exclusively his property.
The most salient aspect of a coparcenary is that there is no such thing as a lady coparcener according to Mitakshara School. Not even a wife, although entitled to maintenance by utilizing the property of her husband and therefore has a stake in his property, is not the coparcener of her husband.
A mother, for example, cannot be a coparcener with her son. Hence, the rights of women in India in the joint family are none whatsoever and even lesser in the coparcenary, wherein she did not get any recognition at all. Nonetheless, over a decade ago Section 6 of Hindu Succession Act was amended by the Parliament and took cognizance of the fact that a daughter can be a coparcener inclusive of a son, thereby awarding woman equality of status, as indoctrinated in the Constitution. Alterations were effected in the Act of 2005 since the Parliament was of the opinion that exclusion of daughters in the Mitakshara coparcenary property was discriminatory towards them. Therefore the alterations were implemented. From the intent of Statement of Object and Reasons, there is clarity on the 2005 Amendment Act.
The conclusion to be drawn is as follows –
Retaining Mitakshara coparcenary property excluding the females essentially means that when it comes to inheritance of ancestral property the females are the deprived ones as opposed to their male counterparts.
Exclusion of the daughter from taking part in the ownership of coparcenary property in addition to contributing to gender-based discrimination against the daughter has resulted in oppression and an attempt at negating her fundamental rights with constitutional guarantee. Therefore, the Parliament had enough wisdom to deem it is appropriate to induce equality amongst Hindu male and female heirs through the Amendment Act of 2005.
THE HINDU SUCCESSION (AMENDMENT) ACT, 2005
Daughters did not have any independent rights whatsoever under The Principal Act of 1956 in regards to partition or even demand that the property be partitioned. The daughters’ rights were limited to claiming their share in the property of their father and similarly, once her ancestor passes away she can lay claim on the properties as well. This resulted in daughters being discriminated against based on gender and daughters were excluded from relishing the coparcenary property which is a violation of Article 14 and 15 of the Indian Constitution.
Having realized the dichotomy and gender discrimination being perpetrated for centuries, the Parliament made amends with the acceptance of the recommendations and suggestions of the Law Commission of Hindu Succession Act, 1956. Hindu Succession (Amendment) Bill was ratified by both the Houses of Parliament resulting in the amendment of the bill to include 'Daughter' in coparcenary.
As a result, daughters now have equal rights as sons do in so far as their father’s property is concerned. After including a coparcener’s daughter in the coparcenary and with the amendment’s enactment, the daughter in her own right becomes a coparcener. As a coparcener, the daughter is entitled to sell her share or interest in the coparcenary property through a well-executed Will.
The Amendment Act substitutes Section 6 of The Hindu Succession Act, 1956 has realized the right of a Daughter as a Coparcener in her own right. It overrides the basic concept of Coparcenary which was inclusive of male members only of a Joint Hindu Family, for the formation of a coparcenary. While this concept has undergone substantial modification, even to this day a widow, mother and a wife are queued up or waiting in line for gaining entry in Coparcenary.
With the 2005 Amendment Act in effect, Section 23 of the Hindu Succession Act, 1956 has been repealed thereby awarding same rights to Daughters for seeking partition even in a residential house, with entirely male coparcener occupants of joint family.
Therefore, these days daughters have the same right for seeking partition of a residential house occupied by Joint Family members after September 9, 2005 if the joint property has not been partitioned until December 20, 2004.
Ever since the Amendment has been in effect, the Supreme Court and High Courts are faced with this issue, which from the perspective of the society in its entirety is crucial. The reason being the society as a whole is identified by its right, livelihood, and social fabric. The coparcener rights are in favor of a 'Woman', only recently which she was denied of since time immemorial.
After citing Section 6 of the Amendment Act of 2005 The Supreme Court maintained that if a decree of Partition finally is yet to be passed, until the Hindu Succession (Amendment) Act, 2005, commences, then the amendment of the preliminary decree was essential in view of the fact that the daughters are coparceners.
Clearly, according to the Amendment to the Hindu Succession Act, 'Justice' has been served to Women by awarding them equal opportunity and status regarding inheritance as well as equality in the eyes of the law, as indoctrinated by Article 14 of the Constitution of India.
Therefore, the property devolves from the coparcener to the coparcener’s daughter provided the property that one is staking a claim on has not been partitioned prior to December 20, 2004. Therefore, a daughter’s rights are intact if a Final Decree of Partition has not been ratified even after the Hindu Succession (Amendment) Act, 2005. However, even if a Preliminary Decree has been ratified by a Court of Competent Jurisdiction, before ratifying the Amended Act of 2005, the same on the plea of the 'Daughter'can be amended.
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