Right to Property by Birth under the Hindu Succession Act
July 13, 2021
The research helps to learn and get the fundamental knowledge about the Hindu Succession Act 1956, its 2005 amendment, and the recent judgment of Vineeta Sharma v. Rakesh Sharma. This research also tries to answer some questions. Firstly, do daughters have the right to claim ancestral property from birth? Secondly, is it necessary that the father of the daughter who wants to claim her right in the property should be alive on the enforcement date of the 2005 amendment? Third, Is the 2005 Judgment retrospective in nature?
Right to Property by Birth
The Hindu Succession Act was enacted by the parliament of India on 17th June 1956. This act basically talks about succession and inheritance. This act covers the issues relating to who will have the right to claim the property and in what proportion after the property owner’s death. When this act was enacted by the parliament of India, the makers of this act felt that there was no need to give coparcenary rights to daughters in the property of her father because they believed that after the marriage of the daughter, she will be a part of another family and thus she should not have any right to inherit anything from her father’s property.
This act applies to any person, who is a Hindu, a Buddhist, a Jain, or a Sikh by religion. This act also includes any person, a Virashaiva, a Lingayat, or a follower of Brahmo, Prarthana, or Arya Samaj but does not include any Muslim, Christian, Parsi, or Jew by religion unless otherwise proved in the court of law.
According to this act, there are two types of property, namely ancestral and self-acquired property. Ancestral property is the type of property that we inherit from our ancestors or in other words a property that we get from our grandfathers or great grandfathers. While on the other hand, the self-acquired property is acquired by a person either by the partition of the ancestral property or acquired by a testimony such as ‘Will’. It also includes any property which is purchased by any person with his own resources.
The division of the self-acquired property is done by a testamentary document such as a ‘Will’. A Will is a document which is made by the owner of the property which states that after the death of the owner how will his property be divided amongst his wife, sons, daughter, or any other person. But a person can only make a Will of self-acquired property. The division of ancestral property is done per the Hindu succession act, 1956, and not by a Will.
Before the amendment of the Hindu Succession Act in the year 2005, the act states that a coparcener will be a person who is the lineal descendent of the same ancestor. So, therefore, the coparcener in the property will be the three generations who are next to the current owner of the property which includes the son, grandson, and great-grandson. Now in case any one of them dies, then the person who is the next in the line will be included as a coparcener. It also mentioned that only the male lineage or the male members from the same bloodline will be eligible to be a coparcener or have coparcenary rights in the ancestral property and the daughter, wife or widow will not qualify for these coparcenary rights.
Problem of Law
Section 6 of the Hindu Succession act talks about the survivorship rule which states that the owner of the property can only pass his property to his son, then from him, it will pass on to his grandson, and then from him, it will pass on to his great-grandson i.e., only three generations next to the holder can be the coparceners. But the main drawback of this section was that only the male members of the same bloodline can be the coparceners in the property and no women in the family can claim these rights. This law not only discriminates against women on the grounds of gender but also deprives them of their fundamental right to equality. This was regarded as the main problem of the Hindu Succession Act 1956. So, therefore, an amendment was done to this act in the year 2005.
The 2005 Amendment
The 2005 amendment of the Hindu succession act canceled out the rule of survivorship which was mentioned in section 6 of this act. Instead of the survivorship rule, two new rules were introduced namely, Testamentary succession and Intestate succession. In testamentary succession, the owner of the property (self-acquired property) makes a Will and according to that Will, he distributes his property amongst his wife, daughter, son, or any other person. While on the other hand if a person dies without making his Will or if there is a question on how to divide the ancestral property then the rule of Intestate succession comes into play.
This 2005 amendment introduced four classes. The first right to claim the property of a Hindu male dying intestate will go to all the people who come underclass I- widow, son, daughter and they will get equal rights. If there are no successors in class I, then the right to claim the property will pass on to the successors in class II of the Hindu male dying intestate. If there are no successors in class II, then the property of the deceased will be given to his agnates or relatives from the male lineage. This will come under class III and if there are no agnates or relatives from the male lineage then the right to claim the property will vest in the hand of the people who are categorized in class IV, namely the cognates or any relatives of the female lineage.
So, therefore, it was concluded that after the 2005 amendment, just like sons, daughters will also have the right to be the coparceners in the property of their father since birth and they will also have an equal liability in the property. The daughter will now also have the right to demand a partition in a Hindu undivided family and she at her own will can also dispose of her right to have a claim in the ancestral property. The enforcement date of this amendment was 9th September 2005.
It also contained a provision that it will not nullify any disposal of property by partition or Will that had taken place before 20th December 2004. But the amendment of 2005 which was brought as a solution to eradicate the problems which arose earlier instead created some problems. The big question which was raised here was that, is it necessary that the father of the daughter should be alive on the date of the enforcement of the amendment i.e., 9th September 2005? Will the daughter be able to claim her rights in the property of her father if her father died before the enforcement date of 9th September 2005?
The case of Prakash and Ors. v. Phulavati tried to answer the issue which was raised that whether or not the 2005 amendment of the Hindu succession act, has a retrospective effect. The bench, in this case, consisted of Justice Anil Dave and Justice A.K. Goyal. The Court held that the father must be alive on the date of enforcement of the amendment which was 9th September 2004. Only the living coparcener’s loving daughter can claim the right to the property as per the 2005 amendment.
But after two years another judgment was passed by the Supreme Court of India in the case of Danamma v. Aman. A bench consisting of Justice A.K. Sikri and Justice Ashok
Bhushan was present in this case. The Supreme Court of India held that the father doesn’t need to be alive on the enforcement date of the 2005 amendment. Even if the father died in the year 2000 and is no more, the daughter can claim her rights in the property. So now the judgments passed in the cases which are mentioned above were conflicting in nature and created a lot of confusion as to which judgment should be followed.
This confusion is solved in the very recent case of Vineeta Sharma v. Rakesh Sharma. In this case, the bench consists of three judges who are Justice Arun Mishra, Justice S. Abdul Nazeer, and Justice M.R. Shah. The Supreme Court of India held that the daughters of the family have a right to claim ancestral property by birth just like the sons. So, therefore, the father or the owner of the property doesn’t need to be alive on the date of enforcement of the amendment.
The Hindu Succession Act 1956 preserved the Mitakshara law under section 6. When a coparcener dies his interest in the Mitakshara coparcener will pass on to the surviving coparcener. A son can get a claim on the property only if he is the coparcener or he is about to become a coparcener.
But now according to the recent judgment passed by the Supreme Court of India, the amendment has been declared as retrospective. It held that the right of the daughter to become a coparcener in the ancestral property is by birth, in the same manner as that of the son, and be given the same right as she was a son. The coparcenary right will not depend on the fact that whether the father of the daughter was alive on the enforcement date of the amendment. So now the daughters also have an equal right over the ancestral property.