This blog post is all about the recent judgement which elucidated the right of Indian daughters on the devolving of Property . Before Hindu succession act, 1956 the Shastric and Customary laws varied from region to region governed the devolving of property. All these laws were codified in Hindu Succession Act, 1956. This post revolves around Hindu Succession Act,1956 it’s amendment in 2005, the confusion created by the amendment and it’s clarification in Vineeta Sharma versus Rajesh Sharma judgement in august 2020.
The Hindu Succession Act talks about two types of property to be devolved that is the Ancestral property (पैतृक संपत्ति) and the Self Acquired Property (स्वयं अर्जित संपत्ति). Ancestral property is acquired by the great grandfather and is to be passed down by generations while Self Acquired Property is acquired by a person during his lifetime and is not being passed down through generations.
A will or testament is a legal document that expresses a person’s wishes as to how their Self Acquired property is to be distributed after their death and as to which person is to manage the property until its final distribution. Will covers the self acquired property and not the ancestral property which is dealt under the Hindu succession act.
The Hindu Succession Act applicable to Hindus. Jains, Sikhs and Buddhists defines Coparcenary as the members of the family who have the right on ancestral property.
Daughters Right to property before 2005
The Hindu Succession Act 1956 defines coparceners as the Lineal descendant of same ancestors. Only males were recognized as coparceners of the family and all the females were just members. All the coparceners are members but vice-versa is not true. The rights of coparceners and members in the property of the family , are different. Coparceners have the right to ask for partition of the property and to get the shares. Members of the family , like daughters and mothers, had the right of maintenance from family property. Upon marriage, the daughter would cease to be a member of the family of the father and would thus, no longer be entitled to the right of maintenance as well as to get a share in the property , if the property were partitioned after her marriage. The rule of Survivorship in section 6 of the Act talked about devolving of ancestral property, for an example if ‘A’ had any property it would be devolved between his son, his grandson and his great grandson and if anyone dies the next in line male would be the coparcenar.
Hindu Succession Act Amendment 2005
The amendment Act,2005 cancelled the criticism of only male being the coparceners and defined two types of succession that is Testamentary succession that includes Wills and Intestate succession which includes the death without any will and division of ancestral property. The Amendment introduced 4 classes consisting of different members of the family for rights in the property. Class 1 includes widow, son and Daughter , giving them equal rights in the property. This abrogated the rule of survivorship and made daughters coparceners since the birth. The Amendment Act aimed at making two major amendments in the Hindu Succession Act, 1956:
- Amended the provision which excluded the right of daughters from coparcenary property.
- Omitted Section 3 of the act which disentitled a female heir to ask for partition in respect of a dwelling house which is wholly occupied by a joint family, until the male heirs choose to divide their respective shares.
Perplexity in the Act
The enforcement date of the Hindu succession amendment act was given 9th September 2005. The problem arose that does the father needs to be alive on 9th September 2005 for the daughter to acquire the property for an example if the father dies in 2001 can daughter claim the property? Our judiciary tried to answer this problem in different cases. We need to have look to these three cases in order to understand to confusion it created and finally the settlement in recent judgement.
1.) Prakash versus Smt. Phulwati 2016
The two judges bench of justice Anil Dave and justice A.K Goyal held that living coparcenar’s living daughter can only acquire the property and said that the father must be alive on 9th September 2005.
2.) Danamma versus Amar 2018
Justice A.K Sikri and Justice Ashok Bhusan held that even if the father died before 2005 daughter will have the right to acquire the property.
3.) Vineeta Sharma versus Rakesh Sharma 2020
The above two conflicting judgement was solved in this case. The Supreme court held that daughters would have equal rights to inherit ancestral property as sons, saying the amendment in 2005 would have retrospective effect. A bench of Justices Arun Mishra, S Abdul Nazeer and M R Shah said the provisions contained in section 6 of Hindu Succession Act, 1956 conferred the status of coparcener on daughters born before or after amendment in the same manner as a son with same rights and liabilities.
Henceforth, according to the recent judgment passed, the 2005 amendment Act has been declared retrospective, and daughters are given equal rights over the ancestral property of their fathers even if the father of the daughter died prior to September 9th, 2005.
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