Sayani Banerjee | Symbiosis Law School, Hyderabad | 25th August 2020
INTRODUCTION
Although there have been immense developments in India but the mindset of some people still remained the same on women’s power to inherit the property. During the medieval period, women were treated in equal footing with men in their right to inheritance. However, with changing societal norms, it was assumed that females are weaker sections of the society who cannot protect their property in the same way as males can.
Recently, in August, 2020, the Supreme Court declared that a daughter’s right in the ancestral property of a Hindu Undivided Family is equal to that of a son and these rights can be claimed by a daughter even if her had father died before September, 2005 (date of amendment of Hindu Succession Act).
Sisters who have so far been deprived of an equal share in their deceased father’s ancestral property will can now claim their dues. Since a coparcenary only ascertains who its members are and does not fix the shares, a preliminary decree can be altered to now ensure equal shares for all daughters.[i]
This article aims at studying the evolution of daughter’s property rights in India from the enactment of Hindu Succession Act, 1956 till today.
BACKGROUND
With the enactment of Hindu Succession Act, 1956, the daughters were granted certain rights on property inheritance. However, the Act was still male dominant in several areas. Section 23 of Hindu Succession Act, 1956 disentitled 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.[ii]
There were also discriminations related to Mitakshara coparcenary as Section 6 of Hindu Succession Act concerns only male members of the family. The proviso to Section 6 is also gender biased in nature. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only 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.[iii]
Sita Ram Jajjoo of Madhya Bharat in one of the parliamentary discussion stated, “Here we feel the pinch because it touches our pockets. We, male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this House.”[iv] However, this was not agreed by anyone.
STATE AMENDMENTS
In several states like Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra, the State Amendments in the 1956 Act were made to extend equal rights to the daughters belonging from Mitakshara coparcenary property. An amendment was made on 30th July, 1994 by insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In the State of Andhra Pradesh, the amendment was made with effect from 5th September, 1985, Tamil Nadu with effect from 25th March, 1989 and Maharashtra with effect from 26th September, 1994 by the addition of Section 29A in the 1956 Act. In Kerala, the Act was enacted in 1975.
THE HINDU SUCCESSION (AMENDMENT) ACT, 2005
The Hindu Succession Act was amended in the year 2005 thereby, removing the discrimination contained in Section 6 of the 1956 Act. According to the amended provisions, daughters have equal rights in the Hindu Mitakshara coparcenary property as the sons. Section 6(4)[v] provides that a daughter is liable in the same manner as a son under the Hindu Law to discharge the debts. Further, disentitlement of female heir from asking partition in respect of dwelling house under Section 23 of the Act was completely omitted by the amending Act.[vi]
By deleting Section 4(2) of Hindu Succession Act,[vii] women’s inheritance rights in agricultural land became equal to that of men. In the north western states, these laws were highly gender unequal and gave primacy to male lineal descendants in the male line of descent. Women came very low in the succession order and got only a limited estate.[viii]
RIGHTS OF HINDU DAUGHTER IN CASE OF INHERITANCE OF FATHER’S ANCESTRAL PROPERTY
Although in 2005, daughters got the right of inheriting ancestral properties, it was subject to certain restrictions. The Supreme Court in Prakash & Ors v. Phulavati & Ors (2015) ruled that “a daughter can only hold a right to the ancestral property if the father has died after this amendment came into force in 2005”.[ix] This implied that the father would have to remain alive till September, 2005 for the daughter to become a co-sharer of his property along with the male siblings.
However, in the case of Danamma @ Suman Surpur v. Amar (2018),[x] it was observed that the two daughters in the matter would get a share of the property, even if their father had passed away in 2001.
In November, 2018, a three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments and decided that there is a need for these laws to be settled.[xi]
After the 2015 judgment was delivered, a number of appeals came up before the Supreme Court on whether the amendment to the Hindu Succession Act, 1956, granting equal rights to daughters would have a retrospective effect. Finally in August, 2020 the apex court held that the daughters like sons have an equal right to inherit joint Hindu Family Property by virtue of their birth. The court also observed that the amended Hindu Succession Act, which gives equal rights to ancestral property, will have a retrospective effect.[xii]
Quoting the precedent of Savita Samvedi (Ms) & Anr v.Union of India & Ors, Justice Arun Mishra observed that-
“A daughter always remains a loving daughter. A son is a son until he gets a wife. A daughter is a daughter throughout her life.”[xiii]
The court stated that the “statutory fiction” of partition created by the proviso to Section 6 of Hindu Succession Act, 1956 did not bring about the actual partition or disruption of coparcenary.
Previously, there was a provision for “oral partition” with the burden of proof on the person who claims there was a verbal division. However, after the amendment of Section 6(5) of the Hindu Succession Act, 2005 it was observed that oral partition can no longer be accepted and there must be a registered deed or a court decree (but for exceptional situations, oral partition can be considered with support of public documents).
Regarding the suits and appeals pending before the High courts and Subordinate Courts across the country on this particular matter, the Supreme Court held that all of them shall be decided within a span of six months.
[i] https://thewire.in/law/hindu-personal-law-gender-equality-ancestral-property-coparcenary-supreme-court
[ii] Section 23 of Hindu Succession Act, 1956
[iii] Section 6 of Hindu Succession Act, 1956
[iv] The Constituent Assembly of India (Legislative) Debates, Vol. VI, 1949, Part II
[v] Section 6(4) of Hindu Succession Act, 2005
[vi] See, Hindu Succession Act, 2005
[vii] Section 4 of Hindu Succession Act, 2005
[viii] 174th Report of the Law Commission of India on “Property Rights of Women: Proposed Reform under the Hindu Law”.
[ix] Supra note i
[x] Danamma @ Suman Surpur v. Amar, (2018) 3SCC 343
[xi] https://theprint.in/judiciary/daughters-equal-right-to-ancestral-property-heres-what-landmark-sc-judgment-says/479728/
[xii] “Daughters have equal birthright to inherit property: Supreme Court”, The Hindu, 11th August 2020
[xiii] Vineeta Sharma v. Rakesh Sharma & Ors, CIVIL APPEAL NO. DIARY NO.32601 OF 2018
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