DAUGHTERS LEGAL RIGHTS TO INHERIT THE FATHER’S PROPERT

 Succession is occasioned for properties of Hindu Undivided Families when there is partition in the family or when a male coparcener dies leaving daughters. The HINDU SUCCESSION ACT, 1956   originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to substenence from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005. It was a landmark amendment to the HINDU SUCCESSION ACT, 1956. Which originally denied women the right to inherit ancestral property ruled that a Hindu woman or a girl will have equal property rights alongwith her male relatives for any partition made in ancestral property.

The HINDU SUCCESSION (AMENDMENT) ACT,2005, amended sections 4,6,23,and 30 of HINDU SUCCESSION ACT. It revised rules on coparcenary property giving daughters of the deceased equal rights with sons and subjecting them to the same liabilities and disablities. The amendment essentially furthers equal rights between males and females in legal system.

Before the enactment of the HINDU SUCCESSION ACT,1956 Hindus were covered by Shastric and customary laws that varied from region to region. Under the Mitakshara School of Hindu Law, a woman in a joint Hindu Family had the right only of maintenance but not to inherit the property. Consequently, if a partition took place in the coparcenary property, then each male coparcener was entitled to a share but the daughters did not get any share as one of the heirs on the death of coparcener.

PROVISIONS OF HINDU SUCCESSION (AMENDMENT) ACT, 2005:

Section 6 (1) of Hindu Succession Act provides in a joint Hindu Family , the daughter of coparcener shall by birth become a coparcener in her own right in the same manner as the son. She shall have the same rights in the coparcenary property as she would have had if she had been a son and she shall be subject to the same liabilities in respect of the said property.

Section 6(2) property shall be held her with incidents of coparcenary ownership. And property is capable of being disposed of by her testamentary disposition.

Section 6 (3) provides where a Hindu dies after the commencement of Hindu Succession Amendment Act 2005, his interest in the property of joint family, shall devolve by testamentary of intestate succession. Property shall be deemed to have been divided as if a partition has taken place and daughter is allotted the same share as son. The share of the pre-deceased son or pre-deceased daughter, as they would have got had they been alive at the time of the partition, shall be allotted to the surviving children of such pre-deceased son or daughter.

Section 6(4) no court shall recognize any right to proceed against a son, grandson or great grandson for the recovery of any debt due from his father, grandfather or great grandfather.

Section 6(5) provides that partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court.

Section 6(6) provides that nothing shall apply to a partition which has been effected before the 20/12/2004.

In CT Vs Maharani Raj Laxmi Devi, ..For[i] the purpose of partition of HUF, Section 6 of HINDU SUCCESSION ACT would govern the right of the parties, however so far as the INCOME TAX LAW is concerned , the matter has to be governed by Section 17(1).

Section 8 .. The property of male Hindu dying intestate shall devolve as per the provisions given below:

·      Firstly amongst the heirs of class I.

·      If no heirs in Class I then Class II.

·      If no heirs in both classes then amongst agnates of the deceased.

·      Lastly if no agnates then amongst the cognates of the deceased.

                 Class I heir

·      – Son

·      – Son of Predeceased son.

·      – Son of Predeceased son of Prede­ceased son.

·      – Widow

·      – Widow of Predeceased son

·      – Widow of Predeceased son of Predeceased son

·      – Mother

·      – Daughter

·      – Son of Predeceased Daughter.

·      – Daughter of Predeceased Daugh­ter.

·      – Daughter of Predeceased Son

·      – Daughter of Predeceased Son of Predeceased Son.

·      – Son of Predeceased Daughter of Predeceased Daughter.

·      – Daughter of Predeceased Daughter of Predeceased Daughter.

·      – Daughter of Predeceased Son of Predeceased Daughter.

·      – Daughter of Predeceased Daugh­ter of Predeceased Son.

        Class II heir

·      –      Father

·      –        Son’s Daughter’s Son.

·      –        Son’s Daughter’s Daughter.

·      –        Brother.

·      –        Sister.

·      –        Daughter’s Son’s Son.

·      –        Daughter’s Son’s Daughter.

·      –        Daughter’s Daughter’s Son.

·      –        Daughter’s Daughter’s Daughter.

·      –        Brothers Son.

·      –        Sister’s Son.

·      –        Brothers Daughter.

·      –        Sister’s Daughter.

·      –        Father’s Father, Father’s Mother.

·      –        Father’s Widow.

·      –        Brothers Widow.

·      –        Father’s Brother.

·      –        Father’s Sister.

·      –        Mothers Father.

·      –        Mothers Mother.

·      –        Mother’s Brother.

·      –        Mothers Sister.

·      Agnates of the deceased are relatives from the parental side. ‘A Person is said to be an agnate of another if the two are related to blood or adoption wholly through males’.

·      Cognates of the deceased are relatives through maternal side. ‘A person is said to be cognate of the deceased if the two are relative by blood and adoption not wholly through the males’.

Distribution of property  – Section 10

Following are the rules provided for the distribution of property among class I heirs:-

Rule 1- Intestate’s widow – one share [if he had more than 1 widow then also 1 share in total]

Rule 2 – Surviving sons, daughters & mother of deceased –one share each

Rule 3- The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share.

Rule 4- The distribution of the share referred to in rule 3 –

–         Amongst the heirs in the branch of the predeceased son shall be so made that his widow (or widows) together and his surviving sons and daughter get equal portions; and the branch of his predeceased son gets the same portion;

–         Amongst the heir in the branch of predeceased daughter shall so made that the surviving sons and daughter get equal portions.

CONSEQUENCES OF AMENDMENT OF THE ACT:

Daughter shall be coparcener of Hindu Family Property. If a Hindu dies, the coparcener property shall be allotted to the daughter as is allotted to sons. If a female coparcener dies before partition, then children of such female would eligible for allotment assuming a partition taken place immediately before her demise. No recovery is made for ancestors dues from sons, grandson or great grandson by applying doctrine of pious obligation. A female member can also seek partition of the dwelling house where the family resides. A widow of a pre-deceased son even though remarried is now eligible for share in property as legal heir of the pre-deceased son of the family. A female can also dispose of her share in coparcener property at her own will.

The law, which gave equal right to daughters in ancestral property under the Hindu Succession Act, is prospectively enforceable and not with retrospective effect , the Supreme Court declared in its recent verdict.

Prakash v Phulavati[ii] 

The Karnataka High Court had held that daughters would be entitled to equal share even if father had died prior to September 9, 2005, when litigations over partition were pending in courts.

The defendants-appellants have questioned the Judgment and Order of the High Court with the contention that the amended provision of Section 6 has no application in the present case. Father of the plaintiff died on 18th February, 1988 and was thus, not a coparcener on the date of commencement of the Amendment Act. The plaintiff could not claim to be “the daughter of a coparcener” at the time of commencement of the Act which was the necessary condition for claiming the benefit

The amendments of 2005 gave equal right to daughters in coparcener properties by removing the discrimination that existed in the original enactment, the Hindu Succession Act, 1956 against Hindu women on rights over ancestral properties.

The Apex Court said that the rights under the Hindu Succession (Amendment) Act, 2005 are applicable to living daughters of living coparceners)as on September 9, 2005

“The text of the 2005 amendment, itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the Hindu Succession (Amendment) Act, 2005.”

“We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of amendment,” the Apex Court said.

 Parameswari @ Gnanasakthi v Raja Ratinam and Others..[iii] the case related to a daughter married before March 25, 1989, laying a claim to half share as against one-fourth share, which was conceded as her share of her father's share on his death prior to the central amendment. It was decided that the claimant was married before the State Amendment Act. The view expressed, hereinbefore, is in conformity with this decision. It is only where no succession has taken place between March 25, 1989, and December 25, 2004, both married and unmarried daughters were on a par till the date of succession on or after December 25, 2004, so that the married daughter's share would get enlarged because of the central amendment and not in a case where there is succession during the interregnum between the State and Central amendments.

COMPILED BY:

VANITA BANSAL(ADVOCATE)

B.A.LL.B

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[i] CT Vs  Maharani Raj Laxmi Devi (1997) 224 ITR 582(SC)

[ii] Prakash v Phulavati 

[iii] Parameswari @ Gnanasakthi v Raja Ratinam and Others (2010) (5) CTC 51,