Daughter’s rights in parental property

In a landmark judgment, the Supreme Court on 11th August, 2020 ruled that daughters have a right in the parental property. A three-judge bench said daughters have the right irrespective of whether a girl’s father was alive or not at the time of the 2005 amendment to the Hindu Succession Act, in 2005. The Supreme Court’s order settles a dispute over a daughter’s say in her parental property.

Caveat: If the Parents have already made their “Will”, then property rights are as per the ‘Will”. Thus this SC judgment applies only if there is no Will.

Inheritance rights of daughter

In a landmark judgment, the Supreme Court (SC) ruled that daughters have a right in the parental property. SC said daughters have the right irrespective of whether a girl’s father was alive or not at the time of the 2005 amendment to the Hindu Succession Act, in 2005. The Supreme Court’s order settles a dispute over a daughter’s say in her parental property. The apex court’s clarification is significant since it set aside a clutch of previous decisions by the top court that she would have the coparcenary right only if both the father and the daughter were alive as on September 9, 2005 when the amendment was notified to the Hindu Succession Act.

“Daughters must be given equal rights as sons. Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not,”

Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005. The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does. “Since the coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9.9.2005.

What is the 2005 law?

The Mitakshara school of Hindu law codified as the Hindu Succession Act, 1956 governed succession and inheritance of property but only recognised males as legal heirs. The law applied to everyone who is not a Muslim, Christian, Parsi or Jew by religion. Buddhists, Sikhs, Jains and followers of Arya Samaj, Brahmo Samaj are also considered Hindus for the purposes of this law. In a Hindu Undivided Family, several legal heirs through generations can exist jointly. Traditionally, only male descendants of a common ancestor along with their mothers, wives and unmarried daughters are considered a joint Hindu family. The legal heirs hold the family property jointly.

Women were recognised as coparceners or joint legal heirs for partition arising from 2005. Section 6 of the Act was amended that year to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”. The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.

The law applies to ancestral property and to intestate succession in personal property — where succession happens as per law and not through a will.

The court said the 2005 amendment gave recognition of a right that was in fact accrued by the daughter at birth. “The conferral of a right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application, they confer benefits based on the antecedent event, and the Mitakshara coparcenary shall be deemed to include a reference to a daughter as a coparcener,” the ruling said. The court also directed High Courts to dispose of cases involving this issue within 6 months since they would have been pending for years.

What was the Modi government’s stand?

Solicitor General Tushar Mehta argued in favour of an expansive reading of the law to allow equal rights for women. He referred to the objects and reasons of the 2005 amendment. “The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India,” he submitted.

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