Monday, December 4, 2023

An Equal Claimant

Courts have stressed that daughters, single or married, have an equal right over their father’s property. But till mindsets change, they will continue to get the short end of the stick.

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The Gujarat High Court recently pointed out that society’s mindset towards daughters and sisters needs to change as even after marriage, they have equal rights in the family property. A division bench of Chief Justice Aravind Kumar and Justice A Shastri was hearing a petition challenging a lower court order in a family property distribution. Here, the petitioner’s case was that it was not clear whether his sister had relinquished her right to the property or not.

Annoyed with the petitioner’s submission, the chief justice observed:

“This mindset that once the daughter or sister in the family is married, we should not give her anything, this should be changed. She is your sister, born with you. Just because she has married, now her status in the family does not change. Thus, this mindset should go.”

Notably, the Karnataka High Court had last week made a similar observation saying: “If the son remains a son, married or unmarried; a daughter shall remain a daughter, married or unmarried. If the act of marriage does not change the status of the son; the act of marriage cannot and shall not change the status of a daughter.” The bench adjourned the matter for three weeks.

Before 2005, daughters were never considered equal to sons when it came to their rights over their father’s property. Unlike sons, daughters could only be “members”, not “coparceners” (individuals who have a legal right to their ancestral property by birth). While coparceners could ask for partition and a share of the property, members couldn’t. Once the daughter gets married, she stops being a member of the Hindu Undivided Family, and therefore, loses her right to the share and maintenance of her father’s property. 

With social equation changing rapidly in recent years, a need for equal rights in the father’s property was felt repeatedly. As a result, in 2005, an amendment act was added to the Hindu Succession Law (1956) to ensure that the daughter has an equal right to the father’s property (regardless of her marital status).

In India, the rights of daughters in the family’s property have evolved over a long period of time. The Supreme Court made some crucial rulings in this area over the years, shaping the law into what it is now.

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In Prakash & Ors. vs Phulavati & Ors., daughters’ rights to their parents’ property were first addressed. The Supreme Court ruled that regardless of the daughters’ birth dates, “the rights of coparceners under the Amendment Act, 2005 apply to the surviving daughters of living coparceners as on 9th September 2005”.

Therefore, if a coparcener’s father passes away prior to September 9, 2005, the coparcener’s living daughter will not be entitled to the paternal property and will not be able to inherit it. In certain cases when the coparcener has passed away before the Act’s start date, the Amendment Act of 2005 will not be applicable.

Furthermore, the Supreme Court ruled in Danamma vs Amar Singh that the daughter is also entitled to a share of the parent’s property if the father who passed away before September 9, 2005 was a coparcener and there was a prior lawsuit pending regarding division by a male-coparcener. The Court reasoned that Section 6 of the Act is retroactively applicable and grants daughters a complete claim to the family’s property.

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People were confused about a daughter’s part in the parental property due to the conflicting rulings in the two cases, but this was clarified in Vineeta Sharma vs Rakesh Sharma & Ors where the Supreme Court ruled that Section 6(1)(a) of the Amendment Act, 2005 grants the coparcener an “unobstructed heritage”. Regardless of whether the father was alive or deceased on the day of the amendment, a coparcener has a birth right to the inherited property. The Court further ruled that Section 6 of the Amendment Act should be implemented retroactively in order to give daughters the opportunity to inherit property based on the order of their birth.

This ruling made things clear and granted daughters the same parental property rights as sons. No matter when she was born, the amendment will likewise apply to daughters of living coparceners. The right of daughters in a father’s property in India is absolute now, and they have an equal claim to the property as the son. This applies to married daughters also.

But what about the mother’s property? According to the Hindu succession law, any self-acquired or inherited property of the mother will naturally go to the daughter without any other direct heir (instead of the male collaterals like the mother’s brother). Otherwise, both sons and daughters of a deceased woman will have an equal share in her ancestral property. 

Now daughters, irrespective of their marital status, can ask for partition and an equal share of the ancestral property of their parents. However, this is only null in cases where a will has been made stating the deceased person has left the property to the son and not the daughter.

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On February 25, 2021, the Supreme Court ruled that the parental-side kin of a deceased woman (without a will) cannot be considered “strangers” and thus can claim their rights on her property. The parental side-kin can be the deceased woman’s parents, her father’s direct heirs, i.e. the dead woman’s sister or brother, and lastly, her mother’s side of heirs.

We have come a long way as far as women’s rights are concerned. It is only justified that all the loopholes in the original Hindu Succession Act were amended and gave both sons and daughters equal rights. The daughter’s right to her father’s property will be absolute, and she will always be the legal owner of her deceased father’s property. 

—By Abhilash Singh and India Legal Bureau

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