Introduction:
“Our Constitution fosters and strengthens the spirit of equality and envisions a society where every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual.” [1]
The property rights of men and women were different from each other since 1956 under Hindu Succession Act 1956. The daughter enjoyed the property of her father till she got married. On the other hand, the son had the full right over his father’s property. A daughter was expected to become a member of her husband’s family once they married. A Hindu Undivided Family (HUF) is defined as a group of people who are all lineal descendants of a single ancestor, according to Hindu law. Hindus, Buddhists, Sikhs, and Jains can all create a HUF. This paper focuses on the nature and extent of a daughter’s right over a father’s property after the Hindu Succession (Amendment) Act, 2005.
Background
Previously, after a daughter married, she was no longer considered a member of her father’s HUF. Many interpreted this as a restriction on women’s property rights. The Hindu Succession Act, 1956, which controls property devolution among Hindus, was revised on September 9, 2005. “According to the Hindu Succession Amendment Act of 2005, every daughter, married or unmarried, is deemed a member of her father’s HUF and can even be designated as the ‘karta’ (manager) of his HUF property.”[2] A daughter could previously only benefit from the amendment’s advantages if her father died after September 9, 2005, according to the court. Only if both the father and the daughter were alive on September 9, 2005, is the daughter qualified to be a co-sharer. However, on February 2, 2018, the Supreme Court made it a general rule that a daughter who is alive or dead on the date of the modification is entitled to a part in her father’s property, allowing her children to claim the same right.
However, there was much uncertainty between the Supreme Court’s decisions in the cases of “Prakash v. Phulavati[3] and Danamma v. Amar[4]”. When the matter came before a three-judge bench of the Hon’ble Supreme Court in “Vineeta Sharma v. Rakesh Sharma & Ors[5]”., the Apex Court decided that the verdict in “Prakash v. Phulavati[6]” didn’t accurately decipher the law and that the 2005 change act was retroactively pertinent, stopping a long-running discussion regarding when the advantages of the 2005 correction were given.
Effects of The Act’s Amendment on Women’s Interest in Property Rights
This amendment went into effect on September 9, 2005, and it made Hindu Law history in terms of women’s property rights. The effect of this reform was that the secondary or substituted status to which Hindu law generally subjected women was eliminated, and comparable rights or positions for daughters and sons were created. According to Section 6, daughters are regarded as coparceners from birth, and so have all of the rights of a coparcener. She can also become a Karta if she is the family’s senior member.
With the recent judicial declaration and interpretation of the amendment by the Courts, issues about the consequence of the amendment and how it would influence the situation of women and property when it is implemented have arisen. By virtue of becoming a coparcener as that of a son, females born on or after September 9, 2005, get an interest in the ancestral property. Though the effect of this change, whether retroactive or prospective, has been a point of contention for a long time.
In “Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar[7]”, bench disagreed by observing the 2 requirements under Section 6(1) of the act. To begin, the daughters requesting benefits under Section 6 of the Act must be living at the time of the amended act. Second, on the date of the amendment’s enactment, the property in question must be available as coparcenary property.
The modification is retroactive, according to the Court, and will apply to all girls born before and after June 17, 1956, but before September 9, 2005. It is, however, subject to one condition: that the daughter was alive at the time of the 2005 Amendment’s inception. When the Principal Act was enacted, it applied to all Hindus born before or after June 17, 1956, but only if they were living at the time. The word “on and from” was introduced by the Parliament to ensure that the already established rights in terms of co-parcenary property would not be disrupted by a claimant claiming as an heir to a daughter who died before the amendment took effect. As a result, this amendment will encompass females born before September 9, 2005, subject to certain restrictions.
The Supreme Court maintained this perspective on the alteration being applied reflectively to guarantee the wellbeing of the little girls on account of “Danamma Suman Surpur v. Amar Singh[8]“, held that change is possible as of September 9, 2005, and can’t be questioned further for its suggestions. However, attitudes acquired by law before December 20, 2004, as division or distance will be unaffected.
In the case of “Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.[9]”, the same court found that a preliminary order issued by the court in a partition dispute does not affect the rights bestowed on daughters by the amendment. In the case of partition proceedings, the final decree is the only thing that makes the final. As a result, the court may make appropriate changes to the preliminary ruling in order to restore the law’s rights. As a result, it may be assumed that a partition suit was filed prior to 2005, but that it was still waiting before the Court for a final ruling. The daughter’s entitlement to the property is therefore generated by virtue of her being alive after the amendment was enacted in such cases.
Landmark Cases
The “Vineeta Sharma[10]” decision is based on the concept that the objective of Section 6 of the Act, as revised by the 2005 amendment, was not to bestow benefits to female successors proactively or retrospectively but to do so retroactively. When a law prescribes benefits conditional on eligibility, it applies retrospectively if such eligibility exists even before the law is enacted. While explaining the notion of retroactive application in relation to the 2005 amendment, it was said that the 2005 amendment provides female successors with the same benefit of succession as their male counterparts based on a prior occurrence.
The court also kept in mind that, under the Act, a distinction must be made between the right to claim a share and the size of the share that can be claimed. The right of a coparcener to claim a piece of the co-parcenary property remains fixed, even though the particular share accessible to the coparcener varies with family births and deaths, and is only decided at the time of partition. As a result, the court determined that the hypothetical division under the proviso to the unamended Section 6 of the Act only impacts the amount of share that a coparcener can claim, not the right to claim a share in the first place.
As a result, the death of the previous coparcener, which triggers the notional division under Section 6 of the unamended act, was ruled to influence only the computation of the share, not the right to claim a share. Because the daughter becomes a coparcener owing to the 2005 amendment, her ability to claim a share under Section 6 of the Amended Act is independent of a hypothetical division in the case of her predecessor coparcener’s death previous to the 2005 amendment, as determined by the Vineeta Sharma decision.
Except for the judgment that the female successor must be alive on the day of the 2005 amendment entering into force to claim coparcenary rights8, the judgment in the “Prakash v. Phulavati case[11]” was overturned for a variety of grounds, including the following.
- In “Prakash v. Phulavati”, the court held that the notional parcel recommended by the stipulation to Segment 6 of the unamended Demonstration brings about the severance of coparcenary property in case of the archetype coparcener’s passing before the 2005 change, and in this manner, no coparcenary property is left accessible to be divided on account of the girl guaranteeing under the 2005 correction.
- Nonetheless, in the Vineeta Sharma case, the High Court held that the notional segment endorsed by the said stipulation to Segment 6 is simply expected to influence the calculation of the perished coparcener’s portion when he was made due by a female beneficiary a male relative of such female beneficiary and that the notional segment doesn’t, at last, decide the freedoms and liabilities of the male and female replacements.
- In the Vineeta Sharma decision, the Apex Court held that, due to the express language of Section 6 (1) (a), the requirement for a female successor to claim coparcenary rights is not at all dependant on the predecessor being alive as of the date the 2005 amendment comes into force, contrary to the assumption made by the Apex Court in the “Prakash v. Phulavati[12]” decision.
- The purpose of Section 6 of the Amended Act is to change the nature of the female successor’s right to succession from blocked to unimpeded legacy, which the “Prakash v. Phulavati[13]” decision did not consider.
Conclusion
At the absolute first ladies were not given fundamental freedoms of the property yet after many battles and voices towards vile the enactment made a different demonstration in regards to the property privileges of ladies. Yet the demonstrations are not satisfactory which makes disarray. In this way, the enactment should anticipate making arrangements for the strengthening of ladies in the property freedoms.
Even in the Dharmashastras, Hindu women’s status was always beholden to male family members. That’s why, when the Hindu Succession Act was passed in 1956, the legislators didn’t see the need to provide daughters’ rights to the father’s property, because the idea of a daughter marrying into another family meant she shouldn’t be entitled to anything from her father’s estate.
However, with the 2005 amendment, the equality guaranteed by the Constitution was restored, and the clauses provided son and daughter in a Joint Hindu Family equal status. Though there is some controversy in respect to legitimately adopted daughters, since this phrase is not addressed in the modified Act, and her rights to inherit her father’s property, there is still some doubt. Also, because the status of son and daughter is equivalent under section 6 of the Act, the children of the daughter will be considered as coparceners in the same way as the children of the son. As a result, it is the most significant achievement in the context of Hindu women’s position in society prior to the amendment.
References:
[1] INTERNATIONAL JOURNAL FOR ADVANCED LEGAL RESEARCH, https://www.ijalr.in/2020/08/womens-property-rights-under-hindu-law.html (last visited Nov. 9, 2021).
[2] MAKAAN IQ, https://www.makaan.com/iq/legal-taxes-laws/what-are-property-rights-of-daughters-in-hufs (last visited Nov. 9, 2021).
[3] (2016) 2 SCC 36.
[4] (2018) 3 SCC 343.
[5] (2020) AIR 3717 (SC).
[6] Supra at 3.
[7] AIR 2014, Bom 151.
[8] Supra at 4.
[9] (2011) 9 SCC 788.
[10] (2020) AIR 3717 (SC).
[11] (2016) 2 SCC 36.
[12] (2016) 2 SCC 36.
[13] Supra at 12.
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