DAUGHTER’S RIGHT OVER PROPERTY BY GRISHMA SHETTY @ LEXCLIQ

Daughter’s right over property

By grishma Shetty at lexcliq

Introduction:

The Hindu Succession, 1956 at the time of enactment didn’t have any provision regarding the rights of daughters to the property of their father. It was believed that since daughters get married, they become part of another family, and hence are not entitle to the property of their father. There was a lot of discussion related to this gender discrimination with related that daughter’s also should be liable to their father’s property. In 2005 a new amendment was brought in the Hindu Succession act which aim at removal of gender discriminatory provisions regarding the rights of property. That equal right to both daughters and sons towards their father’s property .the major achievement was including all daughters as coparceners in the Hindu Undivided Family (HUF) by amending the provision which excluded the rights of daughters from the coparcenary property by the law of Hindu succession (amendment) act, 2005.

COPARCENARY: This term means that a person who has capacity to inherit the property which is owned and acquired by their fathers or ancestors by birth. Only a coparcener has the right to demand partition of such property as it is jointly owned by them (coparceners). Before the 2005 amendment, only male members such as son, grandson, and great grand-son but after this amendment even female members such as daughter, granddaughter, and great grand-daughter where liable to be the coparcener.

Provision of section 6(5) of Hindu Succession Act, 1956:

The Hindu Succession (amendment) act, 2005

The section 6 deals with devolution of interest of male hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary and the female cannot inherit in the ancestral property.

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 negation her fundamental right to equality guaranteed by the constitution of India. Having regard to the need to render social justice to women, few states like Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in the hindu coparcenary property.

Section 6A – Equal right to daughter in coparcenary property:

  1. in a hindu family governed by mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right same like as the son .She have the same right in the coparcenary property same like if she was a son .She will have same liabilities and disabilities as that of a son .
  2. at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter same way as that is allotable to a son provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter.
  3. Female hindu shall be by her with the incidents of coparcenary ownership and shall be regarded , notwithstanding anything contained in this or any other act for the time being in force, as capable of being disposed by her will or others.
  4. It shall be applied to a daughter married prior to or to a partition which had been effect before the commencement of Hindu Succession Act, 1990.

Cases –

prakash v.phoolvati

The deceased person died before the amended Act before 2005 but after some years, his daughter filed a complaint to get an equal share in the property of the father as a coparcener under the Act. The court interpreted the legislation and held that the Act was meant to be prospective in nature, not retrospective, therefore, the person who died before 9th September 2005 will not be covered under this amended Act and it will only apply to the person who died after the Act came into force. Thus, the rule of survivorship will apply in this case and the daughter will not have any share in the estate of the father.

Vineeta Sharma v. Rakesh Sharma.

Under this case the confusion regarding the coparcenary rights of the ancestral property in the entire Hindu community including Buddhist, Jain, and Sikh was cleared. In the year 2005, an amendment was made in the provisions of the Hindu Succession Act 1956. Section 6 of the Hindu Succession Act was amended as stated above in the year 2005, it stated about the devolution of interest in coparcenary property. Section 6 of the Hindu Succession Amendment Act 2005, states that on and from the commencement of this amendment, in a Joint Hindu Family which is governed by the Mitakshara law system the daughter of a coparcener shall have the right in the same manner as a son would have in the family. The daughter would have such right since the time of birth, and she would also be subjected to the same liabilities as of a son. The other subsections to Section 6 of this Act started about the female Hindu would be allotted the same share as it is allowed to a son.

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