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Daughter’s Equal Right on Ancestral Property

Introduction

In India, personal laws regulate the inheritance of ancestral properties. Succession among Hindu families is dealt with by the Hindu Succession Act, 1956. This Act gave restricted property rights to Hindu women, and sections such as section 6 and section 23 of the Act were primarily patrilinear. However, major revisions to the Act were introduced in 2005. In August 2020, in the case of Vineeta Sharva v. Rakesh Sharma & Ors, the Supreme Court ruled that the daughters of the Hindu father must have the same rights to ancestral property as the son who eventually gave equal rights to women.

Property rights under Hindu Law

There are two major schools of thought for the Hindus, Mitakshara and Dayabhaga. Since Mitakshara was approved and acknowledged by the majority of Indians, it was codified as the Hindu Succession Act, 1956, which governed the estate and inheritance of the Hindus. Under this law, only patrilineage was regarded as a legitimate successor or co-sponsor who granted the right to inherit the property of their parent. Thus, in the older ages, most Indian women were financially dependent on their husbands or sons.

The clause barring a daughter from co-parenting has not only added to the discrimination suffered by women on the grounds of gender; it has also led to a breach of the right to equality under Article 14, granted by the Constitution of India. While southern states such as Karnataka, Andhra Pradesh, Tamil Nadu and Maharashtra extended equal rights to daughters belonging to Mitakshara coparcenary property in the 1990s by State amendments to the Act. In December of 2004. The amendment Bill was introduced to the Rajya Sabha to eliminate inequalities in the Act. The 2005 Hindu Succession (Amendment) Act acknowledged women as co-parennials and gave equal rights and responsibilities to daughters and sons under section 6. The 2005 Act also excluded section 23, which allowed women to request partition even though they were held by male heirs. Section 24 also refused to encourage the widow to claim the husband’s inheritance if she remarried. This amendment entered into effect on 9 September 2005, and was of a prospective sort.

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As a part of the amendment, the girls came before the courts to assess their arguments under section 6 of the 2005 Act. However, the different courts have held that only living daughters of living coparceners will claim inheritance. This law was also upheld by the Supreme Court in the case of Prakash & Ors v. Phulavati & Ors in 2015, where the Court declined to acknowledge the daughter as a coparcener on the grounds that her father had died before the beginning of the 2005 Act. On the opposite, in Danamma @ Suman Surpur v. Amar (2018), while the father had died in 2001, the Supreme Court ruled in favour of the daughters by awarding them co-parennial rights.

These contradictory decisions of the Supreme Court gave rise to a special appeal for leave in 2018. In the case of Vineeta Sharva v. Rakesh Sharma & Ors (2020), this question was referred to the Tri-Jugend Board, where the Court affirmed the rights of co-parennial girls irrespective of whether the parent was alive or dead and whether the daughter was born before or after the 2005 Act. The Court has ruled that the oral division of the property is not appropriate, with certain cases the oral partition could have been heard.

This decision has had a retrospective effect on Section 6 of the 2005 Act, provided that the division of the property is rendered after 20 December 2004, in order to prevent the re-opening of old cases and to create a backlog in the judiciary. The amendments to Section 6 shall be applicable in all prosecutions or appeals pending which have been called to a halt in the course of the proceedings in this case and shall be determined as soon as possible. While the decision would not offer any recourse to daughters who were refused the right to co-parennial protection previous to the 2005 Act.

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Conclusion

Coparcenary law is important in matters of succession. Coparcenary is known to be a birth right that cannot be invalidated due to the gender or marital status of a person. Fair property rights give women tremendous opportunity to succeed in society when property can be used to gain money, stable mortgages, etc. They still have a feeling of rights, independence and honour. While it is important to remember that rights and liabilities go hand in hand, the daughters will still be responsible for the debts of her father.

Finally, in 2020, women were accorded equal treatment as men in terms of inheritance in Hindu communities in compliance with Article 14 of the Constitution of India. However, still nowadays, certain women are compelled or forced to forfeit their right of inheritance in the name of traditions. The seminal decision can be seen as a move forward in achieving equality for women in this male-dominated society. It must have been. It is fascinating to see how Indian families with a history of passing on family inheritance to male heirs would respond to this decision.

Legislators are recommended to replace the gender with terms that identify words like son and daughter and to replace it with a gender-neutral word that is child / child. This move will also be helpful to those who are members of the LGBTQA culture, as certain people do not prefer to identify themselves as male or female. For changes in culture, the legislation has to be updated. The Supreme Court understands the interests of the current situation, while the lawmakers are not seeking to make improvements to the laws in line with the needs of the population.

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Women have worked for a long time in patriarchal culture to gain equal treatment in the world. This male-dominated society has been skewed against women in all matters, such as succession, work, etc. It is time for women and men to be handled fairly. Behavioral reform must take place in the minds of Indians in order to relinquish gender inequality.


Cite this article (The Bluebook 20th ed.)-

Kosha Doshi, Daughter’s Equal Right on Ancestral Property, Ex Gratia Law Journal, (November 11, 2020), https://exgratialawjournal.in/blawg/women-and-law/daughters-equal-right-on-ancestral-property-by-kosha-doshi/.

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Author

Kosha Doshi
Student - Symbiosis Law School, Pune