Daughter’s Right To Property Post 2005 Amendment To The Hindu Succession Act, 1956
India has been a land of discrimination for the females as against their male counterparts since history. Be is compelling the daughter’s parents to pay off a hefty amount to get their daughters married or be it charring them to death by the Brahmin pundits who wanted to snatch away all the property left to her by her husband.
If not for anything, we must thank the British for helping us alleviating our country’s daughters’ fate by removing the evil practise of ‘sati’. However, many years after having a Constitution in place which talks about equality and anti-discrimination on the basis of one’s sex; we have still the laws of succession in our country discriminating a daughter’s right to her father’s property as against her brothers.
In this project the researcher intends to discuss the development in the status of daughter’s right to property post the remarkable amendment in 2005, of the Hindu Succession Act, 1956.
In the Hindu religion, among other sects, the following two groups are of utmost importance
Mitakshara law, has been more discriminatory of the daughter’s property rights as against Dayabhaga School.
According to mitakshara law, each sons acquires at his birth an equal interest with his father in all ancestral property held by the father, and on the death of the father, the son takes the property, not as his heir, but, by survivorship. The son along with his father and two of his descendents are regarded as ‘coparceners’ of the Joint Family Property. But, according to dayabhaga law, the sons do not acquire any such interest by birth. Their rights come into question for the first time only on the death of their father. On the death of the father, they take such property as is left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father’s lifetime, there can be no coparcenery in the strict sense between a father and a son.
In the Mitakshara school, daughters had no right to be coparceners (till 2005). Their right was limited to ‘maintenance’ as long as they were unmarried, and ‘marriage expenses’ to be met out of the joint family property. They had no right in the property and hence could not demand for partition. Coparcenery was a concept specific to male heir; and coparceners had a right unique from the other members of the joint family, in the sense, that they had the exclusive right to ask for partition. The eldest of the male member (who’s the first coparcener) also held the post of the karta or the manager of the joint family property. His position did not make him eligible for any greater benefit than the other three coparceners; each of the four linear descendents (coparcener) had equal Rights.
However, Dayabhaga law was little more sympathetic towards daughters. There was basically no difference between a female or a male; i.e., to say there was no coparcenery in the absolute sense. In this form of school, no one had a right to the property, till the person from who he/she is supposed to inherit died. This will become clearer with the following example. If X (father) dies leaving his widow and his son; both would acquire equal right over the property. Now if the widow dies, leaving her son and the son’s daughter, then the latter two would inherit the property together as coparceners. Here the son’s daughter has the same right to ask for partition as the son has. Therefore, under Dayabhaga law, every adult coparcener male or female is entitled to enforce a partition of the coparcenery property unlike in the Mitakshara law.
When the Hindu Succession Act, 1956 was passed, it didn’t really bring about any substantive transformation in the way succession operated in the past. The Act, just put the operative law in black and white. Hence, it documented with it, all the discrimination that was practiced in ancient India against the daughters without any change. This continued to debar the constitutional mandate enumerated under Article 14 of the Constitution.
Section 6 of the un-amended Act, states that ‘when a Hindu male dies after the commencement of this act, having at the time of his death an interest in the Mitakshara coparcenery property, his interest in the property shall devolve by survivorship…..’ . There was no such mention of the property right of the females.
Fortunately, with the amendment of Section 6 in the year 2005, daughters rights were acknowledged eventually. It now stands as: On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
Hence, a lot of things have changed.
It is a principle that one who is not a coparcener cannot become the karta of the family; but post this amendment, since the daughter also has a right to be a coparcener, she has a right to be the manager of the family and subjected to the same rights and obligations as that of the son.
In the case of Radha Ammal v. IT Commissioner, it was held that the right to become a manager depends upon the fundamental fact that the person upon whom the right devolves was a coparcener. It was held that the right was conferred upon the male members, as the female members were not treated as coparceners. but, now, on reading the above position held by the court with the amendment in 2005, a daughter, who can now be a coparcener (according to Section 6) could also become the karta or manager.
There are certain questions that need to be answered. They are as follows:-
- What happens if a daughter is begotten at the time of partition but is born after it?
- What happens if a daughter is begotten and born after the partition?
Answer to question No.1
In the case of Yekeyamian v. Agniswarian, the position with regards to a son begotten at the time of partition but born after it was discussed. If no share was kept aside for him, at the time of partition, he had a right to reopen the partition and have a share allotted to him. Now, since the daughters have got the right to property, they shall be treated alike; i.e, as if she were born as a son. Hence, she can ask for the partition to be reopened if no share has been allotted to her while she was in her mother’s womb.
Answer to question No.2
In this case, if the father had reserved a share for himself at the time of partition from his other sons and daughters, then this property of his shall devolve onto this daughter. But if however this is not the case, i.e. if the father has not reserved any property to himself then the daughter can ask for the reopening of the partition and have a share allotted to her.
It is really surprising how late the Centre was in enacting this amendment to the Hindu Succession Act, 1956—some of the states had already taken upon itself to deliver justice to the daughters of our country–Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka had each passed legislation in their states with an aim to remove the discriminatory features laden in the Act.
Section 3 of the Kerala act state removed the ‘Right by birth’ clause. No person, whether female or male could claim right in the property by the mere instance of his or her birth. This in a way did not do away with the discrimination that the daughters were subjected to for years; because it was wholly prospective and fails to confer rights on daughters in the existing coparcenary properties.
On the other hand, the Andhra Pradesh legislature conferred the right by birth on daughters who are unmarried on the date when the act came into force.
Thus the classical mitakshara coparcenery could no longer operate in these States even prior to the Central Amendement. In the states following Dayabhaga law; like West Bengal, Orissa (barring areas of Southern Orissa), Assam and Tripura, situation wasn’t as worse, because Dayabhaga treats females and males on the same pedestal. In states of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka, though retained the skeleton of the Mitakshara law, it substantially removed its discriminatory features by conferring quality on daughters (unmarried).
These amendments raised the daughters’ position in the joint family in leaps and bound. Not only does she continue to be a coparcener even after her marriage she also gets to be the part of her husband’s joint family.
However, nothing good comes without problems. The researcher wishes to discuss the following problems:-
- What’s the difference in the daughter’s right if she is married as against her right if she were a spinster.
- What is the difference in the Right of a natural daughter and that of an adoptive daughter?
- What happens when a partial partition with respect to some coparcenrs, had taken place?
- With state legislature legislating on the same issue and providing contradictory answers to the ones answered by the Central Act, which one would prevail and why?
- Is S.6(1)(c) of The Hindu Succession (Amendment act,2005), 1956 valid?
If the daughter was born in Karnataka and was married prior to 1990, then she would not be granted any rights vis-a-vis her father’s property. However, after the 2005 Central Amendment, the difference between married and unmarried daughters is not recognised any more.
In the case of Sugalabai Vs Gundappa A. Maradi and Ors, the question concerning the right of a married daughter to be treated as a coparcener irrespective of the marriage happening before the Karnataka Amendment Act, 1990 came into force , where the share of the plaintiff/appellant was modified from 1/4* to 1/8* on the ground that the appellant being one of the daughters was not entitled to claim partition as she was not a coparcener.
The court held that the lower appellate court was in error in reducing the share of the appellant and stating further that the daughter was a coparcener by birth, by virtue of the Karnataka Amendment Act of 1990, and therefore, on partition of the joint Hindu family coparcenery property shall have to be so divided as to allot to a daughter, the same share as is allotted to a son.
It was further submitted that as the amendment Act was passed during the pendency of the appeal before the lower appellate court and hence it was the duty of the lower appellate court to have taken note of the said changes in the law.
Yet, another submission was made, that the appellant though was married prior to 1990, yet by virtue of amendment brought to the Principal Act by the Central Government by way of the Hindu Succession Act (Amendment) 2005, which removed the distinction between a married daughter and an unmarried one, entitles the appellant to be treated as a coparcener and hence the view taken by the lower appellate court in reducing the share of the appellant cannot be sustained in law.
Section 29-A of the Acts (6-A of the Karnataka Act) states: That in a joint Hindu family which is governed by Mitakshara law, the daughter of a coparcener ‘by birth’ shall become a coparcener in her own right. It seems that the phrase “by birth” is a pre-condition for the Right on the coparcenary property. If so, whether the distinction between a natural-born daughter and an adopted daughter can be upheld as a reasonable classification? To the contrary it may be argued on the basis of section 12 of the Hindu Adoption and Maintenance Act, 1956, which states that every adopted child is to be treated as the real child to the adoptive parent(s) for all purposes; and hence, this logically should give the adoptive girl (or boy) the right to inherit her/his parent(s) ancestral/self-acquired property. This however, does not debar the adoptive child from inheriting from her natural family also she will be having a vested coparcenry right by birth there.
Another reason why the adoptive child should not be treated differently from that of natural child is because the policy of Hindu Adoptions and Maintenance Act is to treat an adopted child and an after born natural child similarly.
One can only surmise the reasons for the exclusion of the married daughter. First, the legislature might have taken into account the sociological fact that dowry was given at the time of marriage in the case of married daughters. Second in some cases property or jewellery might have also been given at the time of marriage to the daughter in the name of dowry. But they failed to take note, that there might also be certain circumstance where both these assumptions might not be relevant in which case such married daughters might lose out.
But the Karnataka legislation has failed to take note of that taking and giving of Dowry is an offence and that more than 60 years of independence this evil practise has reduced substantially. Hence there may be many cases where nothing has been give. Besides, barring one the right to inherit her father’s property merely because of the chance of dowry, in a way encourages the joint family members to give away a certain amount to her in-laws at the time of her wedding and in turn bar her successfully from gaining rights over property of greater value. This i’m sure was certainly not the intention of the Legislation; it sought to ensure equality amongst all people, be it between sons and daughters or between married and unmarried daughters.
When a partial partition with respect to some coparcenrs, has taken place the interests of undivided coparceners may suffer significant reduction in the value of their shares with the introduction of daughters as coparceners.
Further there are some practical difficulties that the Amendment brings about. On the demise of the father, the daughter of the coparcener is entitled to act as karta of the joint family in preference to her stepmother thought she may lack experience and with it, shall belong to another family after her marriage. The mother cannot take on the job of a Karta, because ‘coparcenership is a necessary condition to being a karta.
Another problem was recognised in the case of Sri. Govind Reddy v. Union of India, where a question had arisen as to which of the two Acts would be valid-the Central Act enacted in 2005 or the Karnataka Act, which had already bestowed some right to the daughters from 1994. The court held, that the latter would prevail over the former; as provided for under Article 254(1) of the Constitution of India which enunciates the normal rule that in the event of a conflict between a Union and a State Law, in the concurrent field the former prevails over the latter – irrespective of the time of the Union Law is passed.
The other issue discussed in this case was with regards to the validity of S.6(1)(c) of the 2005 Act; which restricts the right of the daughter of a co-parcener from questioning any alienation of the coparcenary property that had taken place before 20.12.2004. the problem cited by the legislature was that if they granted the daughter the right to question any alienation of the coparcenery property that had taken place before 20.12.2004, would lead to a wave of cases thrashing against the door of the Judiciary and cause the chaos of unsettling the cases that had already be decided and disposed off. However, the court held in a certain case, that if this was the mandate, then the same rule should be applied to the son’s power to question such alienation; cause the problem cited by them would the same, irrespective of the petitioner’s gender.
- Radha Ammal v. IT Commissioner, AIR 1950 Mad 538
- Yekeyamian v. Agniswarian, 1870 4 Mad HC 307
- Sugalabai Vs Gundappa A. Maradi and Ors, ILR 2007 KAR 4790
- Sri. Govind Reddy v. Union of India, AIR 2010 Kant 27
- MULLA, on family law
- The Hindu Succession Act, 1956 (as amended in 2005)
- ‘Coparcenenary Rights to Daughters: Constitutional and Interpretational Issues’, B. Sivaramayya, 1997 3 SCC (Jour) 25