This article has been written by Ms. Poorva Nirmal, a 2nd year student of Vivekananda Institute of Professional Studies, New Delhi.
Abstract
The Hindu Succession Act, 1956, brought significant changes, recognizing coparcenary rights for women through the Hindu Succession (Amendment) Act, 2005. However, conflicting judicial interpretations, as seen in cases like Prakash v Phulwati and Danamma v Amar Singh, raised questions about the retrospective application of the amendment.
Vineeta Sharma v Rakesh Sharma & Others clarified that daughters have equal coparcenary rights, regardless of their father’s survival at the time of the amendment. This groundbreaking decision challenged traditional notions, emphasizing that a daughter remains a part of her father’s family even after marriage. Despite these advancements, the rights of Daughter-in-law in Hindu undivided families remains limited. They can inherit property only through their husband’s share.
Muslim law which has an uncodified structure in the matters of inheritance, possesses a gender-neutral approach but a distinction in the quantum of inheritance shares. The justification lies in the Mehr and maintenance received by women upon marriage.
This was about the majority of the population. Other subjects are governed under Indian succession act, 1925 and Hindu succession act, 1956.
INTRODUCTION
PM Narendra Modi has expressed gratitude for the decision to give daughters an equal portion of their parents’ assets. Despite a 2005 change, the PM stated that mothers, daughters, sisters, and other female household members must be entitled to claim property. This is the rationale behind the revision of the Hindu Succession Act. Previously, daughters may only be entitled to an equal portion of ancestral property if their parents passed away after September 9, 2005. However, daughters now have the right to inherit property without regard to the year of death, thanks to a recent Supreme Court (SC) ruling.
Since the legislators believed that the daughter would marry into a different family and thus not be entitled to inherit anything from her father’s property, they did not see the need to grant equal rights to daughters in the coparcenary property when the Hindu Succession Act was passed in 1956.
Time and again judiciary and the legislature have dwelled into the question of inheritance guarded under The Indian Succession Act, 1925 and the Hindu succession act, 1956 in India. Females particularly have came a long way in getting their share in the property. When it comes to division of property, a daughter and daughter-in-law enjoys multiple rights however, they are not same which we shall be discussing subsequently in detail.
HINDU LAW OF INHERITANCE
It must be noted that the inheritance laws for Hindus, Buddhists, Jains and Sikhs or are same in accordance with the Hindu succession act, 1956
To get started, there are some legal terms related to inheritance and succession which are as follows-
- Ancestral & self acquired property-
Ancestral property- Undivided property inherited by a Hindu from his father, father’s father or father’s fathers’ father- 4 generations old
Self acquired property- property that an individual has acquired through his or her own efforts, skills, or resources. Also a property that is a divided share of an ancestral property.
- Shared household- the. house belonging to the husband or the joint family he is a member of.
- Coparcener– person who has the capacity to assume a legal right in his ancestral property by birth. That is, simply by being born into a Hindu undivided family is inherently recognised as coparcener.
Every individual living in Hindu undivided family is a member of the family. But not every member is a coparcener to the property.
According to Indian succession act, 1925-
- Will- the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death
- Executor- a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided
As per the Hindu succession act, 1956-
- Heir- any person, male or female, who is entitled to succeed to the property of an intestate under this act
- Intestate- a person is said to die intestate in respect of property of which he or she has either the ownership or possession without making any will before dying.
EVOLUTION OF DAUGHTER’S RIGHT TO INHERITENCE
Though the women had an ‘absolute ownership’ over their own property, they could not claim coparcenary rights over the ancestral property.
Before the enactment of Hindu succession act, 1956, inheritance was governed by shastric and customary laws which varied from region to region governing Hindus. According to the Mitakshara School of Hindu school, women weren’t accorded the status of coparceners; thus, they could not claim ancestral property, which was delved on to the male heirs. They had absolute ownership of Stridhan- whatever limited jewellery, or clothes she received at the time of marriage, this led to inequity and discrepancy
After the 1956 act was enacted, rule was made where ancestral property to be devolved by survivorship rule only.
Essentially, under the survivorship rule, if a male coparcener passes away, his share doesn’t get inherited by his legal heirs but is absorbed by the surviving coparceners in the joint family. When a male Hindu dies intestate (without a will), his share in the joint family property devolves by survivorship upon the surviving coparceners.
Only males of Hindu undivided family were made coparceners up to 3 generations. Women were not recognised as coparceners.
Then came the amendment act- Hindu succession (amendment) act, 2005 which enabled women to be the legal joint-heir and acquire the coparcenary property just as sons of the family. Basically it legally made women as mandatory coparceners in Hindu undivided family. The amendment also struck down the survivorship rule which was mentioned in section 6 of Hindu succession act, 1956 and introduced the concept of testamentary and intestate succession.
Testamentary succession means making a will for self-acquired property and divide it among the widow, the son, the daughter or any random person.
Intestate succession comes into picture when the person dies intestate- without making a will where 4 classes were introduced under it which includes wife/husband, son and daughter.
But the amendment which came as a relief, bring itself with some issues. The amendment act, enacted on 9 sept 2005 had an issue that is it necessary for father to be alive on the day the amendment came into force for the daughter to claim the right? The matter was dealt in following cases-
Prakash v. Phulwati, 2016
- In this case, the only issue that has been raised is whether Hindu succession (amendment) act, 2005 will have retrospective effect or not? Here, the plea of retrospectivity rejected.
- the Hon’ble Supreme Court of India, while overruling Karnataka high court judgement, stated that “the rights of coparceners under the Amendment Act, 2005 applies to the living daughters of living coparceners as on 9th September 2005, irrespective of the date on which the daughter was born.”
- Further, it was clarified that to avail the valid claim for the amendment, the daughter and the father both needs to be alive as on the date of amendment.
- It means that if the father is a coparcener who passed away before 9th September 2005, the living daughter of the coparcener won’t have any right to inherit the coparcenary property in that case Nor will her heirs inherit it if she died before the enforcement of the amendment.
- That means, in such cases, the survivorship rule shall prevail and the daughter will not have any right over the coparcenary property.
Danamma v Amar Singh, 2018
- the supreme court held that even if the father has died before the amendment came into being, daughter would still have her right in the property.
- Here, Gurunalingappa died in the year 2001, leaving behind his widow, 2 sons and 2 daughters.
- Coparcener’s father was not alive when the amendment came. The widow, 2 daughters and 2 sons were given 1/5th share a piece.
- The court pronounced that this amendment act will be applicable to all the daughters whether born prior to the enactment of the act or after its enactment provided the suit for partition was pending when the amendment came in.
This decision was in contrast to the judgement given in the Phulwati case. Thus, both of these judgments conflicted with each other and gave rise to a pile of doubts regarding the coparcenary rights of a daughter in inheriting the coparcenary property of her dead father. This was dealt in the below mentioned case.
Vineeta Sharma v Rakesh Sharma & Ors, 2020
- The Apex Court of India held that Section 6 of the Amendment Act, 2005 shall be applied retroactively. Explaining this, the court held that the said Act enables women to have the right of succession based on her birth irrespective of the date of death of the father in ancestral property.
- Further held that the coparcenary daughter will have the same rights and responsibilities as that of a Hindu son.
Through this case, it was held that the daughters do have an equal right in the coparcenary property like that of sons, even if the father died before the enforcement of the Hindu Succession (Amendment) Act, 2005.
The popular notion of daughter after marriage is not a part of her father’s family but her husband’s has been contradicted by Justice Arun Mishra saying, ‘once a daughter, always a daughter. A son is a son till the time he is married’. The judgement empowered women of the country by providing them equal right to their father’s property.
The daughters though have become the coparceners and have got their rights, the daughter-in laws’ right in in-laws’ ancestral property is still very limited.
Daughter-in-laws’ right to inheritance
- Regarding property
Daughter-in-law is a member of the family from the date of her marriage but she is not a coparcenary to the ancestral property of the Hindu undivided family she is married in.
The daughter-in-law acquires her right to the ancestral property of the family only through her husband’s share which is either wilfully transferred by the husband or received after his death. This property can either be ancestral or self-acquired. Nor she can ask for her right in deceased mother-in-law’s property. There also, her share would be governed through her husband.
Section 15(1)(a) mentions that the property of female Hindu if died intestate shall devolve upon the son, daughters and husband.
Further, if the son dies intestate, his share would fall upon his widow and children as seen in Danamma v Amar Singh.
in Chaudhary v Ajudhia, it was held that any property possessed by a Hindu female, irrespective of how it was acquired, becomes her absolute property after the act came into force.
- Regarding stridhan
It refers to all moveable, immovable property, gifts etc a woman receives at the time of marriage.
The legal right over these rests upon daughter-in-law only even if the in-laws have their possession.
If the in-law dies while he/she were holding the possession of Daughter-in-laws’ property, she has the right to claim over her stuff.
MUSLIM LAW OF INHERITENCE
Muslim personal law is derived from THE Quran and is not codified anywhere. The Shariat Act of 1937 states in Section 2 that “the Muslim Personal Law (Shariat) shall be the rule of decision in cases where the parties are Muslims, notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law.”
In contrast to Hindu law, no notion of self-acquired or ancestral property exists, nor is there any birthright. A person’s heirs are entitled to inherit every single item of property that they still own.
Two categories of heirs are recognised by Muslim law:
- Shareholders, who are entitled to a specific portion of the deceased’s assets.
Such as a husband, a son, a son’s daughter, a parent, a sister, a uterine sister etc.
- Residuaries: those who would inherit the portion of the property remaining after the sharers have contributed their share, such as a wife, daughter, father’s grandfather, male line grandmothers, consanguine sister, uterine brother, etc.
The property rights of men and women are equal in Islamic law. On the other hand, the female heir’s quantum of share is half that of the male heirs. Under Muslim law, this discrepancy can be justified by the fact that women receive Mehr and maintenance from their husbands upon marriage, whereas males are solely entitled to inherit their ancestors’ property.
If a woman is childless, she is entitled to a quarter of her husband’s property; if she has children, she is entitled to an eighth.
The Indian Succession Act of 1925 will control the possessions inherited by a married spouse under the Special Marriage Act of 1954.
CONCLUSION
The status of women’s right to inheritance of property differs according to the laws they are governed within. In Hindu law particularly, women have came a long way in getting their right prior to which they were subject to discrimination on the basis that they would eventually be getting married off and moving out to a new home in a new family. But as the society progresses and we have entered into the 21st century, women are becoming aware about their rights and duties, they are getting more empowered and self-sufficient. The authorities like legislature and judiciary are putting their time and effort to make women’s right at par with men’s and this is the reflection of a healthy and progressive country.
REFRENCES
The Hindu Succession Act, 1956 Universal LexisNexis ISBN: 978-81-7534-934-6
https://ncwapps.nic.in/acts/TheHinduSuccessionAct1956.pdf
Muslim law inheritance PDF by Sk. Shireen, Principal Junior Civil Judge cum Judicial Magistrate of First Class
https://districts.ecourts.gov.in/sites/default/files/muslim%20law%20of%20inheritance.pdf
Indian Succession Act, 1925 Universal LexisNexis ISBN: 978-81-7534-934-6
https://www.indiacode.nic.in/bitstream/123456789/2385/1/a1925-39.pdf
Court Clarifies Application of S.6 of Hindu Succession Act, 1956
https://www.scobserver.in/journal/court-clarifies-application-of-s-6-of-hindu-succession-act-1956/
CASES-
Prakash v. Phulwati (2016) 2 SCC 36
Daughters as coparcener: Danamma v. Amar (2018) 3 SCC 343
https://www.legalserviceindia.com/legal/article-2507-daughters-as-coparcener-danamma-v-amar.html
Vineeta Sharma v. Rakesh Sharma(2020) 9 SCC 1; Case Analysis