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In a landmark judgement, on August 11, 2020, the Supreme Court has held that daughters will have coparcenary rights on their father’s property, even if the latter died before the Hindu Succession (Amendment) Act, 2005, became effective. The SC’s observation came, while clearing the air on conflicting decisions given by courts in India in the past.
The top court in August 2020 further extended the scope of the 2005 law, to cases where the father was not alive on the date when the Act was introduced. In effect, the SC order by a three-judge bench, makes the 2005 amendment retrospective.
“The provisions contained in substituted Section 6 of the Hindu Succession Act, confer status of coparcener (equal shareholders while inheriting properties) on the daughter born before or after the amendment, in the same manner as sons, with same rights and liabilities. Since the right in coparcenary is by birth, it is not necessary that the father of the coparcener should be living as on September 9, 2005 (the date when the law came into force),” the bench ruled.
The top court, however, said that a registered settlement or partition suit decreed prior to December 20, 2004 will not be reopened, in a move to stop reopening of earlier settlements.
Hindu Succession (Amendment) Act, 2005
The Hindu Succession Act is applicable to Hindus, Jains, Sikhs and Buddhists. The amendment drastically changed the rights of daughters in the property of the parental HUF.
Property rights of a daughter before 2005
The Hindu property act recognises the concept of HUF, which means a family of persons who are lineally descended from a common ancestor and related with each other by birth or marriage. The people who are so descended from commons ancestors, were divided in two parts. In the first category are coparceners. Only males were recognised as coparceners of the HUF and all the females were called members. All the coparceners are members but vice-versa is not true.
Who is a coparcener under the Hindu law?
Under the Hindu succession law, coparcener is a term used to identify a person, who assumes a legal right in his ancestral property by his/her birth in a Hindu Undivided Family (HUF). According to the Hindu Succession Act, 1956, any individual born in an HUF becomes a coparcener by birth.
See also: What is a coparcener?
The rights of coparceners and members in the property of the HUF, are different. Coparceners have the right to ask for partition of the property and to get the shares. Members of the HUF, like daughters and mothers, had the right of maintenance from HUF property, as well as to get a share in the property of the HUF as and when partition of the HUF took place. Upon marriage, the daughter would cease to be a member of the HUF of the father and would thus, no longer be entitled to the right of maintenance as well as to get a share in the property of the HUF, if the property were partitioned after her marriage. As only a coparcener was entitled to become the Karta of the HUF, the female members were not entitled to become a Karta of the HUF and manage its affairs.
Daughter’s right to property after 2005
Section 6 of the Hindu Succession Act, 1956, which deals with coparcener’s right in the HUF property, was amended in 2005 w.e.f September 9, 2005. With this amendment, daughters have been put at par with sons, as far as coparcenary rights in HUF property are concerned. Consequently, the daughter gets all the rights attached with coparcenary, including the right to ask for partition of the property and to become a Karta of the HUF.
However, only the daughters who are born in the family, will get the coparcenary rights. Other female members, who come into the family by virtue of marriage, are still treated as members only. Thus, they are not entitled to ask for the partition but are entitled for maintenance and shares as and when partition takes place.
Married daughter’s right to property under Hindu Succession Amendment Act 2005
After marriage, a daughter will cease to be a member of her parental HUF, but will continue to be a coparcener. Thus, she is entitled to ask for partition of the HUF property, as well as to become the Karta of the HUF, in case she happens to be eldest coparcener of her father’s HUF.
Even in case of a married daughter who has died, her children shall be entitled to the shares that she would have received, if she was alive on the date of the partition. In case none of her children are alive on the day of partition, the grandchildren will be entitled to the shares that the daughter would have received on partition.
Interestingly, the daughter cannot gift her share in the HUF property while she is alive but she is fully capable of giving away her share in the HUF property by way of a will. If a will is not prepared, on her death, her share in the joint property shall not devolve on other members of the HUF but will pass on to her legal heirs.
Can a daughter ask for the partition of her ancestral property?
Daughters have the authority to ask for partition and sale of their ancestral properties as much as sons.
A Hindu widow’s parental-side kin can inherit her property, rules SC
Update on February 25, 2021: Family members on the parental side of a Hindu widow cannot be held to be ‘strangers’ and her property can devolve upon them under the Hindu Succession Act, the Supreme Court has ruled. The top court clarified that the heirs of the father of a Hindu woman are covered under persons entitled to succession of property.
Upholding the order of the high court and the trial court, which allowed a childless widow to enter into a family settlement to transfer her property to her brother’s son, the SC said: “A perusal of Section 15 of the Hindu Succession Act, indicates that heirs of the father are covered in the heirs (of the property), who could succeed. When the heirs of the father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.”
(The author is a tax and investment expert, with 35 years’ experience)