“Daughter is entitled to equal property rights under the amended Hindu Succession Act:” Supreme Court.
The daughters are considered the ‘Laxmi’ or more specifically ‘Goddess Laxmi’ of the house but when it comes to treating her that, our society has taken the backseat and denied from exercising the daughter’s rights. The property is not only the inherent of a son but also of the daughter, the traditionally laid down customs have always barred the society from looking beyond it but the judicial precedents now have also made the daughters as the equal shares of the property. It means feminization of property, since there is no uniform civil code, the females are governed on different aspects to their right to property.
The Hindu Personal laws are highly regulated by the Mitakshara School and Dayabhaga School. Devolution of property according to the former school is through the devolution by survivorship which is pertinent to property of joint or coparcenary family and another is the devolution through succession. The Hindu Succession Act, 1956 is the act that seals with succession of property of the ancestors to the descendants and reduces the complications created by the schools. Hence the act applies to the Hindus, Buddhists, Sikhs, Jains and the rules provided thereby is not applicable to any person apart from mentioned above which means the Muslims, Christians, Parsis, jews as stated by the Article 2[1] of the Act.
CHARACTERISTICS OF THE ACT:
- A single act for the uniform law on inheritance and succession.
- It provides rules and regulations for a few specific types of religion as discussed earlier.
- This act does not apply on certain properties as mentioned in Article 5[2] of the Act such as the property regulated by the Indian Succession Act, 1925 or any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act[3] or the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin.[4]
- With the introduction of the act, the idea of impartible estate was dropped.
- It mentions about the succession of the male Hindu who is intestate as upon the heirs of first class and in absence of heir of first class, on the heirs specified in class II of the schedule further in absence of the above two classes, it would pass on to the agnates of the deceased and lastly if no agnates then the cognates of the deceased.
- The act provides for the property of a Hindu female to be recognized as her absolute property[5], that is its full-time owner irrespective of the fact whether ‘acquired before or after the commencement of this Act’
- The act provides for the devolution of the female Hindu property dying without a will as upon the sons and daughters[6], upon the heirs of the husband[7], upon the mother and father[8], upon the heirs of the father[9], upon the heirs of the mother[10].
- This act also recognizes the rights of a child in the womb of a dead mother [11] and has the right to inherit the property as if he or she would have had when the mother was alive.[12]
Coming to the concept of devolution of coparceners property as mentioned in Section 6 of the Act. Coparcenary is a concept that consists of those people in a Hindu joint family who inherit or have a common legal right to their ancestral property.[13] Coparceners have the inheritance of their property since birth. It specifically talks about the inheritance of property by survivorship if a person dies without making any will and not by succession as the Mitakshara school recognizes two types such by survivorship and by succession. It also mentions that if the deceased dies intestate leaving behind a female as mentioned in first class of the act and a male, then the property should be inherited by succession, that is, speaking clearly, the property would pass on to the male heir and not to the female heirs. This very issue was cynical for all the legal activists as it deemed females as non- inheritors of property and there was a discrimination on the basis of gender violating Article 14 of the Constitution of India as well as Article 15(3) that calls upon the government to make special provisions for women but the personal laws of Hindu were violating this fundamental right. In C Masilamani Mudaliar V. Idol of Sri Swaminathaswami Thirukoil[14], the court talked about the discrimination faced by the female heir in her right to property,
““The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution least they became void under Article 13 if they violated fundamental rights. Right to equality is a fundamental right………Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14(1) enlarging the scope of acquisition of the property by a Hindu female appending an explanation with it”
In another case, John Vallamattom and Ors. V. Union of India[15], the court observed, “The right of equality of women vis-a-vis their male counterpart is accepted worldwide. It will be immoral to discriminate a woman on the ground of sex. It is forbidden both in our domestic law as also international law. Even right of women to derive interest in a property by way of inheritance, gift or bequeath is statutorily accepted by reason of Hindu Succession Act, 1956 and other enactments. This court, therefore, while considering constitutionality of Section 118 of the Indian Succession Act, is entitled to take those facts also into consideration.” The court observed the above while considering the fact that section 118[16] of the Indian Succession Act, 1925 violates articles 14[17], 15[18], 25 [19]and 26[20] of the Indian Constitution.
Thus, this was the position of inheritance of property by the female heirs before the amendment was made in 2005. A new life got added when the amendment bill 2005 was accepted by both the houses, Lok Sabha and Rajya Sabha. The bill was introduced in the Lok Sabha due to the 174th Law Commission Report on Women’s Property Rights to reduce the imbalance in gender.
THE HINDU SUCCESSION (AMENDMENT) ACT 2005
The act came as a shining star for the daughters as their rights were recognized and placed at the doors of the government seeking equality and prohibiting discrimination. Being a Homo sapiens, a daughter cannot be denied the property rights, this amended act finally gave relief to the daughters as it meant to be even their fundamental right.
The amended act omitted the sub section 2 of the section 4 of the Hindu Succession Act, 1956, it abolished survivorship, if a male dies, the property will pass through testamentary or intestate succession and not through survivorship.
COPARCENERS RECOGNITION TO DAUGHTERS
The biggest and the dramatic change made by the act was declaration of daughters as coparceners in addition to the males and changed the Mitakshara coparcenary. The section 6 of the Act, 1956 was amended and this declared a daughter as the coparcener by birth[21], having the same rights as a son[22] and subject to the same liabilities as of son[23]. Wherever there is a mention of Hindu Mitakkshara Coparcener that would impliedly also mean a daughter and not only the son.
DAUGHTER’S MARITAL STATUS
The act might have brought the change but society finds means to question it and thankfully before it could question it had already been answered as nothing in this paragraph will invalidate a division or testamentary disposition made before December 20, 2004[24]. A daughter married before the amendment will also be considered a coparcener and an unmarried married daughter post the amendment will continue to be a coparcener, the line protected a married daughter. The male heirs post the amendment have to share the property with their married daughter as she is now a coparcener and she can approach the court for the enforcement of her rights as a part of the property.
JUDICIAL PRECEDENTS
The Supreme Court is the guardian of the Constitution and protector and guarantor of fundamental rights, it has always paved way for the right path and removed the blemish created by various precedents by the lower courts or reviewed its own judgment and gave fresh view. Such was the case when the Phulavati case[25] came before the court and it gave the order of “the rights of coparceners under the Amendment Act, 2005 apply to the living daughters of living coparceners as on 9th September 2005, irrespective of the birth date of daughters.” this meant that the daughter has no inheritance of the property if the father has died before September 9, 2005 and this lead to a dispute as to what amounts to inheritance of property even after the amendment act as it specified the date as of inheritance, hence there was a chaos in the Indian subcontinent post the judgement. This case was an exegesis of the Amendment Act of 2005 as it responds to the applicability of the act stating that the daughter of the coparcener who died before the adoption of the act shall not be applicable to inheritance of property that explicitly meant prevail of the survivorship rule which was prohibited. Thus, this case came up with the issue of applicability because the date chosen was amounting to disinterest of many daughters.
In another of cases, Danamma V. Amar[26], the court went on to expound the amended Section 6 of the Act retrospectively, that is, the daughter has the inheritance of the coparcener property since birth, this case was in disparity to the Phulawati case as it declared the daughters right from the birth.
These two judgements were countering each other while both came from the same court and hence the court has to take the cognizance of the decisions and hence came up the case of Vineeta Sharma V Rakesh Sharma[27]. In this case, the apex court bench consisting of Justices Arun Mishra, M.R. Shah, Abdul Nazeer overruled the previous judgements and paved way for a new normal stating that the Amendment Act, 2005 will work retrospectively. Since the act was brought with the objective of gender equality hence the new order of retrospective working notwithstanding the father was alive before the commencement, the daughter is at par with the sons. The court said, ““it is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive”.
“The concept of notional partition is created to give effect to the Explanation to Section 6 of the Hindu Succession (Amendment) Act, 2005. It is a legally formed fiction where partition is assumed to happen between the deceased and his coparceners, immediately before the death of the deceased. Notional partition can be interpreted in the following two ways: (1) narrow interpretation; and (2) broad interpretation.”[28] The court relied on narrow interpretation in the Vineeta Sharma case, “The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it.”
CONCLUSION The long-awaited changes were made through the amendment and brought about a change, the society is dynamic hence the laws have to change according to the time and adopt new means, methods and normal. The Vineeta Sharma did come as a changemaker but there are families that still believe in the old notion of inheritance of property by only son and not the daughters as there has not been enough awareness. This has to change and will change with time only after a large number of people are acquainted with it.
[1] The Hindu Succession Act, 1956, §2, No.30, Acts of Parliament, 1956 (India).
[2] The Hindu Succession Act, 1956, §5, No.30, Acts of Parliament, 1956 (India).
[3] The Hindu Succession Act, 1956, § 5, cl.2, No.30, Acts of Parliament, 1956 (India).
[4] The Hindu Succession Act, 1956, §5,cl.3, No.30, Acts of Parliament, 1956 (India).
[5] The Hindu Succession Act, 1956, §14, cl.14, No.30, Acts of Parliament, 1956 (India).
[6] The Hindu Succession Act, 1956, § 15, cl.1(a), No.30, Acts of Parliament, 1956 (India).
[7] The Hindu Succession Act, 1956, § 15, cl.1(b), No.30, Acts of Parliament, 1956 (India).
[8] The Hindu Succession Act, 1956, § 15, cl.1(c), No.30, Acts of Parliament, 1956 (India).
[9] The Hindu Succession Act, 1956, § 15, cl.1(d), No.30, Acts of Parliament, 1956 (India).
[10] The Hindu Succession Act, 1956, §15, cl.1(e), No.30, Acts of Parliament, 1956 (India).
[11] The Hindu Succession Act, 1956, §20, No.30, Acts of Parliament, 1956 (India).
[12] Ibid.
[13] IPleaders, https://blog.ipleaders.in/the-hindu-succession-act-1956/ (last visited Feb. 30, 2023).
[14] C Masilamani Mudaliar V. Idol of Sri Swaminathaswami Thirukoil,(1996) 8 SCC 525.
[15] John Vallamattom and Ors. V. Union of India, (2003) 6 SCC 611.
[16] The Indian Succession Act, 1925, §118, No.39, Acts of Parliament, 1925(India).
[17] INDIA CONST. art. 14.
[18] INDIA CONST. art. 15.
[19] INDIA CONST. art. 25.
[20] INDIA CONST. art. 26.
[21] The Hindu Succession (Amendment) Act, 2005, §6, cl.a, No.39, Acts of Parliament, 2005 (India).
[22] The Hindu Succession (Amendment) Act, 2005, §6, cl.b, No.39, Acts of Parliament, 2005 (India).
[23] The Hindu Succession (Amendment) Act, 2005, §6, cl.c, No.39, Acts of Parliament, 2005 (India).
[24] The Hindu Succession (Amendment) Act, 2005, §6, No.39, Acts of Parliament, 2005 (India).
[25] Prakash V. Phulavati, (2016) SCC 36.
[26] Danamma V. Amar, (2018) 3 SCC 343.
[27] Vineeta Sharma V. Rakesh Sharma, (2020) 9 SCC 1.
[28] SCC ONLINE, https://www.scconline.com/blog/post/2021/01/22/daughters-the-new-equals/ (last visited Feb. 2, 2023).
Author: Shriyanshi
Juris Centre 