Daughter’s Right under Hindu Succession Act, 1956
The right to property is a natural and inherent right of an individual. Patrilineal Hindu law is divided into two schools, the Dayabhaga and Mitakshara which governed the undivided hindu family.
- Mitakshara system which is followed in most parts of India- under this system, sons had an exclusive right by birth in the joint family property. Mitakshara divides property into two classes- Unobstructed Heritage and Obstructed Heritage. Property in which a person acquires an interest by birth is called ‘Unobstructed Heritage’. The right to property which accrues not by birth but on the death of the last owner without leaving a male issue is called ‘Obstructed Heritage’. Thus, property which devolves on parents, brothers, nephews, uncles, etc., upon the death of the last owner is obstructed heritage.
- Dayabhaga system which is followed primarily in Bengal- Under this school, the father is regarded as the absolute owner of his property whether it is self-acquired or inherited from his ancestors. The son does not acquire an interest by birth in ancestral property. His right arises only on the death of his father.
Hindu law was not static but always progressive. We all know that India has been a patriarchal society where women have been unfairly discriminated against men and this was reflected in laws like the Hindu Succession Act, 1956. The Hindu Succession Act (for the sake of brevity hereinafter called as HSA) was the most crucial of reforms since it had to do with property, which is a key to gender equality and empowerment. HSA is an uneasy compromise between the conservatives who wanted to retain the Mitakshara coparcenary and its discrimination against daughters, and the progressives who wanted to abolish the Mitakshara coparcenary altogether. In essence, the Act retained the Mitakshara coparcenary.
Main provisions of ‘Hindu Succession Act, 1956’:
- The Act is applicable only to Hindus, Buddhists, Jains and Sikhs.
- HSA primarily deals with the Succession and Inheritance which in simple words means that who will get the property and by what means the property will devolve among the heirs of the family. This Act talks about two types of properties i.e., Ancestral and Self-Acquired property. In general view the property which is inherited up to three generations is referred to as ancestral property. This is a part of the coparcenary property. It is the property descends from father, father’s father and great grandfather. Self-Acquired property includes property owned and acquired by inheritance or by demise or at a partition or by gift or by his/her skill or exertion or by purchase or prescription.
- According to act only a coparcener can claim a right over the undivided property. HSA further provided that only those persons can be coparceners who are “Male” lineal descendants of same ancestor. A coparcenary property is one which is inherited by a Hindu from his father, grandfather or great-grandfather. A coparcener on birth gets an interest in the coparcenary property.
- Under the traditional law, on the death of a coparcener, his interest in the family property is immediately taken by those coparceners who survive him and thus he leaves nothing behind out of his interest in the coparcenary property for his female dependents. This rule of inheritance is also called “Survivorship Rule” which was incorporated under section 6 of the HSA, 1956 and practiced over a long period of time.
Reasons of the Hindu Succession (Amendment) Act, 2005:
- The main criticism of the act was that only males can be coparceners and daughters were being side-lined from their rights in the property which contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution.
- Several states including Andhra Pradesh, Tamil Nadu, Kerala, Karnataka and Maharashtra introduced state amendments in the Hindu Succession Act of 1956 extending equal rights to daughters in Hindu Mitakshara coparcenary property.
- The act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein.
Main provisions of the ‘Hindu Succession (Amendment) Act, 2005’:
- Section 6 of the Act was amended to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”. By reason of the Act, all female heirs were conferred equal right in the matter of succession and inheritance with that of the male heir. Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter as a coparcener.
- It also gave the daughter the same liabilities in the coparcenary property as she would have had if she had been a son.
- Here it is to be noted that devolution of ‘undivided interest’ by way of inheritance i.e. in absence of any Will of any such coparcener who dies before the 9th September 2005, shall be as per the earlier section 6 of Act of 1956.
- With respect to a Hindu, who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3), his interest shall pass by testamentary or intestate succession and not by survivorship;
- Nothing contained in this section shall apply to a partition (registered or partition effected by a decree of a court) which has been affected before the 20th day of December, 2004.
- A coparcener is entitled to dispose of his ‘undivided share’ in the coparcenary property by making a ‘Will’. But here, it is to be noted that, the ‘Will’ takes effect only upon the death of a testator. Therefore, only in such cases, where the testator dies before the 20 December 2004, testamentary disposition of his undivided interest would remain unaffected by the substituted provisions. However, if suppose, any such coparcener, who executes his last Will, although before the 20 December 2004, but who dies after said date, then in that case, testamentary disposition of his interest shall remain subject to substituted provisions. Meaning thereby that, while calculating or ascertaining his ‘undivided interest’, it is also to be kept in mind that, now his daughters are also the coparceners.
- A plain reading of the section 14 reveals that female Hindu is conferred the absolute right to her property. The daughter is also entitled to dispose of her share of the coparcenary property thereof by way of a will.
- Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. Section 23 did not allow married daughters (unless separated, deserted or widowed) even residence rights in the parental home. Unmarried daughters had residence rights but could not demand partition. The omission gives all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house.
- The Act also deleted Section 24, which barred certain widows, such as those of predeceased sons from inheriting the deceased’s property if they had remarried. Now they can so inherit.
- It also sought to bring the female line of descendant at an equal level with the male line of descent, including children of pre-deceased daughter of pre-deceased daughter.
o The share of a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased daughter;
o The share of the pre-deceased child of a predeceased daughter shall be allotted to the child of such pre-deceased child of a pre-deceased daughter.
o This means a daughter along with a son is liable for debts of joint family.
Criticisms- The HSA was a bold effort to codify the Hindu Law of Succession and to bring it in line with evolving schools of thought on equitable inheritance. In order to achieve the constitutional objective of gender equality, the Hindu Succession (Amendment) Act, 2005 was passed providing to daughters the same rights in coparcenary properties as the sons. Many daughters approached high courts claiming benefit under this law but were denied on the ground that their fathers were not alive as on September 9, 2005. It was argued that the 2005 amendment recognising women as coparceners can only be prospective that unless the father was alive on the date of the enforcement of the amendment Act, there could be no recognition of the daughter’s right.
Conclusion- We cannot say that the 2005 amendment has not transformed the status of women or benefitted women at all. Economically this can enhance women’s security, by giving them birth rights in property that cannot be willed away by men. It undermines the notion that after marriage the daughter belongs only to her husband’s family. This enhances her self-confidence and social worth and gives her greater bargaining power for herself and her children, in both parental and marital families.
Note: The Supreme Court of India in a recent judgement recognizes that in a coparcenary, the daughter have an equal right. If you are looking for an explainer on that judgement, you can read my article here.
