Every religion has started with the norms of patriarchy imbibed in them, and has transformed over time to embrace a more gender equal mindset. The Hindu Succession (Amendment) Act, 2005, along with the Supreme Court ruling in 2018 have restored this gender equality in terms of property rights to the Hindu religion.
By: Sakshi Singh, 1st year BLS-LL.b. student at Thakur Ramnarayan College Of law.
The Hindu Succession (Amendment) Act, 2005 introduced gender equality, for the first time, in the succession laws in India. The 2005 Amendment and the judicial decisions thereafter have clarified that a married daughter has a right over the property of her father, which is equal to that of a son. The effect of the 2005 Amendment can still be circumvented by making a will to deprive the daughters of their rights. If a father forms a will and dies thereafter, the will can be executed only after probate is obtained by the executor. On the other hand, if the father dies intestate, the property devolves equally on his sons and daughters, and the doctrine of survivorship does not apply.
The 2005 Amendment and the judicial decisions thereafter have clarified that a married daughter has a right over the property of her father, which is equal to that of a son. The effect of the 2005 Amendment can still be circumvented by making a will to deprive the daughters of their rights.
SUCCESSION LAWS IN INDIA
The laws governing succession to the property of ancestors are in the nature of personal laws, i.e. they are peculiar to every religion and governed by legislation which is uniquely enacted to cover every aspect of such succession, as per the religious mandates.
It is important to remember, however, that every religion has started with the norms of patriarchy imbibed in them, and has transformed over time to embrace a more gender equal mindset, even if only through the amendments in the legislative enactments enshrining their principles.
The succession and inheritance to the property of the “Hindus” (i.e. Hindus, Buddhists, Jains, Sikhs and persons belonging to any other religion, which is not Christianity, Islam, Judaism and Zoroastrianism) is governed by the Hindu Succession Act, 1956, whereas the succession laws of the Christians, Jews and Parsis are enshrined in the Indian Succession Act, 1925. On the other hand, the Muslims are governed by their personal laws, i.e. derived from the Holy Quran and the Hadith, which are definite in nature but are not scripted.
Most laws in the past either designated no share in the property to a daughter, especially a married daughter. Or if at all, a share which was much less than that designated for a son. Due to this, certain judicial interventions, and thereafter, an amendment came about, especially in the Hindu laws of succession, which grants gender equality in the arena of inheritance.
THE 2005 AMENDMENT
The legislature took note of the gender inequality rampant in our inheritance laws and transformed the Hindu succession laws in 2005. Before 2005, the Hindu Succession Act enshrined the principles of coparcenary control over the property of Hindu joint family property. To understand this concept, it is essential to understand what a HUF and a coparcenary system are.
A DAUGHTER’S RIGHTS IN HINDU SUCCESSION ACT, 2005
Earlier, once a daughter was married, she ceased to be part of her father’s HUF. Many saw this as curtailing women’s property rights. But on September 9, 2005, the Hindu Succession Act, 1956, which governs the devolution of property among Hindus, was amended. According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘karta’ (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.
According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘karta’ (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.
Earlier, according to the ruling, a daughter could avail of the benefits granted by the amendment only if her father passed away after September 9, 2005 and the daughter is eligible to be a co-sharer only if the father and the daughter were alive on September 9, 2005. However, on February 2, 2018, Supreme Court has made it a general rule that a daughter, living or dead, on the date of amendment will be entitled to share in father’s property, thus making her children too to claim this right.
EQUAL RIGHT TO BE COPARCENERS
A coparcenary comprises the eldest member and three generations of a family. It could earlier comprise, for instance, a son, a father, a grandfather, and a great grandfather. Now, women of the family can also be a coparcener. Under the coparcenary, the coparceners acquire a right over the coparcenary property by birth. The coparceners’ interest and share in the property keep on fluctuating on the basis of the number of members according to the birth and death of the members in the coparcenary.
Both ancestral and self-acquired property can be a coparcenary property. While in case of ancestral property, it is equally shared by all members of the coparcenary, in case of self-acquired, the person is free to manage the property according to his own will.
A member of the coparcenary can also sell his or her share in the coparcenary to a third party. However, such a sale is subject to the Right of Pre-emption of the remaining members of the coparcenary. The remaining members, however, have the “right of first refusal” over the property, to stop the entry of an outsider. A coparcener (not any member) can file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, can now demand the partition of her father’s property.
A coparcener (not any member) can file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, can now demand the partition of her father’s property.
FIVE SITUATIONS IN WHICH DAUGHTERS CAN STAKE CLAIM TO FATHER’S PROPERTY
The Hindu Succession Act, 1956, which originally did not give daughters equal rights to ancestral property, was amended in 2005 to give married daughters an equal right in parental property. But despite this amendment in law, some fathers deprive their daughter of ancestral property. Therefore, girls need to be very clear about their right. Here we list out five situations where daughters can/can’t stake a claim on father’s property –
But despite this amendment in law, some fathers deprive their daughter of ancestral property. Therefore, girls need to be very clear about their right.
1) IN CASE OF ANCESTRAL PROPERTY: –
Before 2005 only sons had a share in ancestral property, which is defined as one that is inherited up to four generations of male lineage. However, after the amendment in the Hindu Succession Act, 1956, both daughter and son get an equal right to this property by birth. So, in such situations, a father cannot will such property to anyone he wants to. By birth, daughters have a share in the ancestral property.
2) IN CASE THE PROPERTY is SELF-ACQUIRED BY FATHER: –
If a father has bought a property from his own money, then he has full right to gift the property to anyone he wants. In this case, if the father does not give a share to her daughter, then the daughter cannot raise an objection.
3) IN CASE FATHER DIES WITHOUT A WILL: –
If a father dies without leaving a will, then his property will be equally divided among all the legal heirs. According to the Hindu Succession Act, a male’s heirs are classified into four classes. In this case, the inheritable property goes first to class I heirs, which include widow, daughters and sons.
4) IN CASE DAUGHTER IS MARRIED: –
Prior to the amendment in the Hindu Succession Act in 2005, married daughters were not considered a member of Hindu Undivided Family (HUF). But after the amendment in 2005, daughters have been recognized as a coparcener and her marital status makes no difference to her right over father’s property.
5) IF DAUGHTER WAS BORN OR FATHER DIED BEFORE 2005: –
For a daughter to stake a claim on her father’s property, the father has to have been alive on September 9, 2005, when the Hindu Succession Act was amended. If her father had died before 2005, she will not have any right over the ancestral property. But self-acquired property will be distributed as per the father’s will. However, date of birth of a daughter (if she is born before or after September 9, 2005) does not make any difference to her right over father’s property, be it ancestral or self-acquired.