Introduction
Before the enactment of the Hindu Succession Act, 1956, there were limited rights of a Hindu female over their estate and she had very restricted rights equal to negligible over her property. A Hindu female was restricted to alienate her property and there were restrictions on her even to inherit property. The Act was amended in 2005 to give daughters an equal share of their parental property. Now, a daughter has had a share in the ancestral property since her birth and no one can claim it from her. If the father has self-acquired property then the same shall be distributed as per the provisions of the Will and if the father passes away without making a Will, then the Hindu daughter shall have similar rights as that of a Hindu son in the property of their parents.
There was some fragmented legislation upon women’s rights in property; her self-acquired and inherited property and division of her property. The Act i.e. Hindu Woman’s Right to Property Act, 1937, failed to grant the woman a status where she could acquire, retain, and dispose of the property as a Hindu male. Later, an Act was enacted i.e. the Hindu Succession Act, 1956 whereby Section 14 was brought in that introduced substantial changes. It dealt with the rights of a female over her property and the conflict related to property-related issues was resolved. To understand the concept it is very important to understand the ideology behind the Schools of Hindu Law.
Schools of Hindu Law and Concept of a coparcener
There were two schools of Hindus i.e. Mitakshara and Dayabhag School that govern the inheritance practices amongst them. Under Dayabhag School there was no such distinction that existed between the two genders as under this law there is no birthright upon the property till Karta (property holder) is alive. Till the time Karta is alive, he/she shall act as the sole owner, and only after his death, the property can be inherited, successors and, even women can hold the position of Karta in family affairs.
We may define ‘coparceners’ as the male and female heirs of Hindus who jointly inherit property, whereby they have unity of possession, hence all the co-heirs and their heirs are the coparceners according to Hindu Law. Mulla in his book has defined coparcener as the holders of property in an unbroken chain of descents up to three generations.
Amendment to the Hindu Succession Act, 1956
The object was defined by the Union Government for introducing an amendment to the provisions of the Succession Act. According to them the Act of 1956 violated the property rights of the females as it put restrictions on them being the absolute owner of their property. Under the Act, the woman was not free to acquire, transfer, or have any right over her property as men.
More specifically it was said that such a law that excludes the daughter’s participation in the coparcenary ownership leads to discrimination against her based on gender and it also leads to oppression of her fundamental rights that are guaranteed by the Indian Constitution. Hence a need was felt to amend Section 6 of the Act with an object to remove the existing gender discrimination and to ensure conformity of equal rights to daughters as well. Before an amendment brought to Section 6 of the Act it provides the devolution of interest only to a male Hindu in coparcenary property. Among the members of the Hindu coparcenary, this provision recognized the rule of devolution by way of survivorship.
After an amendment to the Act in 2005, the daughters were given recognition and they were also given specific rights over the property. The said amendment came into force on 9th Sept. 2005 that had no retrospective effect. It was specifically mentioned that this provision would not apply to the disposition of any property by will or through the partition that had taken place before 20th Dec. 2004. Hindu daughters are entitled to be a coparcener similarly like the sons, in the ancestral property. A joint family governed by Mitakshara law, daughters born shall by birth become a coparcener in the said property and she may claim like a son born in the joint family. Daughters born in a Hindu Joint Family under Mitakshara Law shall have the same rights in the coparcenary property as she would have had if she had been a son. This right of succession and ownership is inclusive of the right to claim by survivorship and a daughter under Mitakshara Law shall also be subjected the similar liabilities and disabilities as that of a son.
In Ghamandi Ram’s Case[i]- The Court analyzed the question of collective ownership in a joint Hindu family property and held that coparcenary property shall be collected by all the coparceners of a Joint Hindu Family in a quasi-corporate capacity.
Retrospective effect of the Act
After a recent judgment passed in Vineeta’s Case[ii]- The Court held that the Act has a retroactive effect and the father coparcener doesn’t need to be living as of 9.9.2005. The parliament must have clearly stated the intention by using specific words rather than leaving it in ambiguity. It is also recommended that a certain class of heirs should be shifted to Class I Heirs such as son’s daughter’s daughter, daughter’s daughter’s son, etc.
Absolute property of a woman and Constitution of India
This provision of the Act deals with the property rights of a Hindu female which specifies that a Hindu female has absolute right over her property and there are no restrictions of any sort over exercising such a right. It specifically provides that any property that a Hindu female possesses that she may acquire before or maybe after the commencement of the Act, such property shall be considered as her absolute property and she would have absolute ownership over it and not limited in nature.
Women acquiring estate through Will, Gift, Self-acquired property by skills, or it may be her stridhan the same shall be her absolute property and there shall be no restrictions on the same and she has absolute ownership over it. Property in possession of a Hindu female before the commencement of the Act was her limited property; however, after the enactment of the Hindu Succession Act, she got an absolute right over her property. In M. Shamugha Udayar’s Case[iii]- It was held by the Court that a female shall have absolute ownership over her property. The Court clarified that after the amendment of 2005 came into force all the restrictions that were earlier imposed on the property of women shall be abolished.
Rights of Muslim women
There is no distinction between ancestral property and self-acquired property among Muslims. Under Muslim Law, there are two categories of legal heirs i.e. sharers and residuary. Sharers are the ones who get priority in inheritance over the residuary, in the case of a Muslim female who inherits property from her husband, son, or parents then she is the absolute owner of that property and can dispose of it the way she wants. Further, there are provisions under Muslim Law that give the right to a woman to make a will however there is a restriction on the same that is she cannot bequeath more than 1/3rd of her share in the property.
Rights of a woman under other religions
Distribution of property among women under other religions such as Buddhists, Jains, and Sikhs shall be governed by the Indian Succession Act. According to the provisions of the Act, the blood relatives shall inherit even if the husband or his relatives are alive.
Inherited Property of Issueless Hindu Female Dying Intestate goes back to Source: Supreme Court
The Supreme Court very recently stated[iv] that the daughters of a male Hindu dying without a will would be entitled to inherit self-acquired and other properties obtained in the partition by the father. They would get preference over other collateral members of the family including sons and daughters of brothers of the deceased father.
It further stated that “If a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband”. “Right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized right”.
Conclusion
After the amendment of 2005 to the Act, the daughters have gained the status of coparceners and now they have equal rights as well as shares in the property, with equal duties and liabilities to perform as a son under Hindu Law. More specifically, according to Sec. 14 of the Act, a Hindu female has an absolute right over her property, and as per this provision of the Act, she is now an absolute owner of her estate. A woman is now an absolute owner of the property and she can dispose of her property the way she wants. With the recent judgment passed in 2020, it has been clarified that as the daughter’s right in coparcenary property is by birth and the father coparcener may not be alive as of 9.9.2005[v].
Now, women have equal status and opportunity whereby they can enjoy, surrender, or even alienate their estate to anybody she wishes. She has absolutely the same powers over her estate as that of a Hindu male. The Supreme Court has beautifully quoted that a daughter shall remain a loving daughter till her death but a son would remain yours’ only till the time he is not married and once he will get a wife/to get married, he would replace you with her in his life[vi].
[i] State Bank of India v. Ghamandi Ram, AIR 1969 SC 1930.
[ii] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1.
[iii] M. Shamugha Udayar v. Sivanandam, AIR 1994 Mad. 123
[iv] Arunachala Gounder (Dead) v. Ponnusamy, 2022 LiveLaw (SC) 71
[v] Vineet’s Case (supra)
[vi] Daughters have an equal birthright to inherit property, The Hindu, (Nov. 27, 2020, 10:00 AM), https://www.thehindu.com/news/national/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/article32325891.ece.
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