Issue 6 Vol I, December 31, 2005

law and justice

Daughters get Property Rights for the Real
Joginder Singh Toor

There is at last, a change in the laws of succession, giving equal rights to daughters in ancestral/Joint Hindu family property, which hitherto was an illusion. People wrongly believed that daughters had equal rights in every kind of property of the father. The change has been made with effect from September 9, 2005.

The cardinal question what was that  vice that had crept in and needed to be removed by this amendment when the Hindu law was codified and Hindu Succession Act came into force on June 17, 1956 that provided the daughter for the first time, right of inheritance in father's self acquired property equal to her brothers.

In a nutshell a person possessing immovable property acquired by him out of his own income, known as self-acquired property devolved differently on his heirs than the ancestral/coparcenary property also known as joint Hindu family property. In self-acquired property the daughter takes equally with his brothers but in the coparcenary property her share was reduced considerably.  For example, if a person had two sons, a daughter, and the wife, and possessed Joint Hindu Family/ancestral/coparcenary property worth Rs. 100, the daughter could get only Rs.6¼ while the two sons and their mother got Rs. 31¼ each. Why so?

The Hindu law envisages the concept of joint Hindu family, which “consists of all persons lineally descendants from a common ancestor and includes their wives and unmarried daughter/(s) who cease to be member of her father's family on marriage, and becomes a member of her husband's family."

Hindu coparcenary "is a much narrower body than the joint Hindu family.  Generally speaking it includes only those persons who acquired by birth an interest in the coparcenary property.  These are the sons, grandsons and great grandsons of the holder of the joint property for the time being."  It does not include a female member.  Only the male members are coparceners and they acquire interest in the joint Hindu property by birth.  A female member of the family may be lineal descendant but was not considered as a coparcener and did not acquire any right in the joint Hindu family property by birth as compared to male members.

To constitute a coparcenary property it should have an ancestral character and should be an un-obstructed heritage.  It is unity of ownership in the whole body of coparceners. They have an antecedent title in the property equal to their interest in the coparcenary property which is a fluctuating interest, capable of being enlarged or diminished by births or deaths in the family.  Property acquired from maternal side or from uncles is not ancestral property.  

In the case of joint Hindu family property, while effecting its partition on the death of Karta (i.e. male ancestor holding property is considered as a Karta/Manager on behalf of the Joint Hindu family and not its exclusive owner). A notional partition is assumed to have taken place during the life time of the Karta and the shares are determined as if the partition had taken place during his life time giving equal share to himself, his son(s), wife and not the daughter.  In the case of two sons, wife and daughter the notional partition would give ¼ share each to the sons, the wife and the Karta himself.  The male members of the family get share as coparceners and the wife gets share equal to that of the son and the husband by virtue of Hindu Women Right to Property Act, 1937, which granted equal share to the wife in the notional partition.  This right was never granted to the daughter.  As a result of this notional partition, the interest of the Karta is reduced to his share only which devolves on his death and his share is again taken equally by the wife, the son(s) and daughter. This way the sons and the wife get their share which they got in the notional partition i.e. 1/4th plus 1/4th share from the share of the father/Karta. The father had got only 25 paisa in the notional partition which would again be shared by the wife, sons and the daughter as well. Thus the sons and the mother get Rs.25 + 6¼ = Rs. 31¼ and the daughter gets only Rs.6¼ out of Rs. 100. 

This was the vice preserved in Section 6 of the Hindu Succession Act, 1956.  It read:- "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshra coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act; provided ........."  Meaning thereby that in case of coparcenary property in the hands of Karta, property to be partitioned was only his interest which he got in the notional partition leaving aside the share of his son(s) and wife. This was the discrimination being perpetuated even after the codification of the Hindu law and enactment of the Hindu Succession Act, 1956.

With the amendment of Section 6 of the Hindu Succession Act with effect from September 9, 2005 "The daughter of a coparcener shall,-

(a)  by birth become a coparcener in her own right in the same manner as the son;

(b)  have the same rights in the coparcenary property as she would have had if she had been a son;

(c)  be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshra coparcener shall be deemed to include a reference to a daughter of a coparcener:"

By virtue of this amendment the position  emerges:

(i) That a self acquired property can be disposed of by the owner in any manner by way of a Will, gift, alienation. There are no restrictions on his rights. His sons and daughters and the wife have a right only to a maintenance if they have got no other property sufficient to maintain them;

(ii) The ancestral/Joint Hindu Family coparcenery property can be disposed of by the father/ancestor holding the property, to the extent of his share which he gets in notional partition. Now the daughter gets equal share in the notional partition. He cannot alienate by way sale, Will or gift, the share got by the sons, the daughter and the wife in notional partition;

(iii) He can, however, sell or mortgage ancestral/coparcenary property for a legal necessity such as education of children, their marriages, payment of debt etc. but the sale of the property should be proportionate to the necessity;

(iv) The coparceners i.e. sons/daughters have a right to challenge the alienation if it is more than the share of the ancestor or are not for legal necessity.

jogindersingh_toor@yahoo.com