Daughters Right to Property: A Dilemma of Judicial Decisions

15th February, 2023 - 9:36 am Categories: Legal Issues 0 Comments

Introduction

The right to property of a daughter has been prolonged debate for over years, leit establishes the benchmark of gender equality and embarks the status of women facing economic discrimination. This right not only acknowledges the women as integral part of a Hindu family but also restores the faith of citizens of this nation to lean on the judiciary whenever there is a discrimination based on gender and equality.

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Although, the 2005 amendment bought a revolutionary change within the rights of daughter in ancestral property and stated that the daughters must be treated equal to sons while devolving an ancestral property, yet there was a lack of clarity in the law itself that invited a lot of disputes over the years regarding this matter to which the judiciary continues to take progressive steps towards making succession law more gender neutral.

The supreme court has pronounced judgements in several landmark cases to set up the true intent of the legislature of bringing 2005 amendment discussed in this article below.

Brief on Hindu Succession Act

Hindu succession act enacts upon succession and inheritance in a Hindu joint family. This act is sourced from various Hindu schools. It is a codified law that deals with devolution of property in case of intestate (i.e., without making a will) or unwilled succession and the act is significantly applicable on Jains, Hindu, Sikhs and Buddhists.

Law before the 2005 amendment of Hindu Succession Act

Before the amendment of 2005, only the male lineage of the family was considered as co-parceners, although females were allowed to be a member of joint Hindu family but they were not given the right to inherit the property since birth.

Furthermore section 6 of the Hindu succession act stated that the Devolution of interest of a property shall be as per rule of survivorship, which means that when any person (upon whom Hindu Succession Act is applicable) dies intestate the property must be transferred only to the co-parceners.

The 2005 Amendment

The amendment of 2005 came to effect with an intention to abolish the rule of survivorship & recognise the daughters as co-parceners. It stated that the interest in the property of a Joint Hindu family shall devolve by testamentary or intestate succession & established that the right of a daughter is same as the son in acquiring an intestate property.

Although the amendment made  huge reforms on laws regarding the right of a daughter on  the ancestral property  , it was ambiguous regarding whether or not the father must be alive after 2005 for a daughter to claim her rights in ancestral property. The contradiction in the judiciary arose when different judgements were passed in the case of Prakash & Ors. V. Phulavati and Ors. (2015) & Danamma @ Suman Surpur & Anr. V. Amar & Ors. (2018),

Wherein in former it was held that the right of daughter to ancestral property will only be given in if the father is alive as on 2005 whereas in the latter i.e the case of Danamma @ Suman Surpur & Anr. V. Amar & Ors. (2018) it was held that the daughter has a right to property even if the father is not alive as on 2005.

Further clarification on the subject matter was given in the Landmark judgement in the case of Vineeta Sharma v. Rakesh Sharma, on August 11, 2020, wherein the Supreme Court held that daughters will have coparcenary rights on their father’s property, even if the father died before the Hindu Succession (Amendment) Act, 2005, became effective.

To this the supreme court held that , the 2005 amendment states that the right of a daughter shall be in same  manner as the rights given to a son therefore even if the father is not alive on or after the amendment , the daughter shall be considered as a co -parcener in the same manner a son is considered.

The Case of Arunachala Grounder (Dead) V. Ponnuswamy’s Case (2022) 

A self-acquired property in brief could be defined as  a property purchased  by a person with his own money and ancestral property means any property has been inherited down to four generations of the family.

The case of vineeta sharma clarified the daughters right but only to the extent of the ancestral property , in this case the matter arose as to whether the daughter has a right to inherit the self-acquired property?

To which the supreme court held that the self-acquired property of a sole surviving daughter of a person who has died interstate will devolve by virtue of inheritance and not by survivorship.

And lastly, If a female Hindu dies intestate without children, the property she has acquired from her father or mother will go to her father’s heirs, but the property she inherited from her husband or father-in-law will go to the husband’s heirs. The Legislature’s primary goal is to ensure that the inherited property of a female Hindu who dies issueless and intestate is returned to her family.

Conclusion

The Hindu succession act when enacted initially did not give recognition to daughters as a coparcenary of a family, the act was discriminatory and gender biased and violated article 14 of the constitution, this necessitated the existing law to be amended , and significantly 2005 amendment was bought into the force which gave the sons and the daughters equal rights. This amendement bought a revolutionary change and was intented to remove the gender biased law.

However a lot of ambiguity in the interpretation of this law arose when two different judgments were passed in the case of Phulavati’s Case of 2015 and the Danamma’s Case of 2018.

Thereafter , The case of vineeta sharma was a clear win on breaking the gender bias but was incomplete on one of the major aspect of devolution of property that is in the case where the property is self acquired and with the recent judgment on Arunachala Grounder (dead) v. Ponnuswamy’s case (2022) we can hope that all the concerns arising on a right of daughter to inherit the property are resolved.

Of course one is free to exclude there children from there self acquired property but in case where there is intestate death the property shall be equally devolved between the children.

To finish with, these judgements do give a new definition to the status & rights of female. Indeed, It has rightly bee said that “equality begins from home” and for a democratic country like ours it is very essential that we try every possible method to eradicate such gender discrimination in our country and amendments like these definitely pave the road ahead.

Author: Muskaan Mandhyan is a penultimate student of BBA-LL. B in New law college, Bharati Vidyapeeth , Pune, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References:

https://www.scconline.com/blog/post/tag/hindu-succession-act/

Hindu Succession (Amendment) Act, 2005

Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1