Rights of a daughter in a father’s property

The concept of Hindu joint family has been embedded in India since ancient times. The family of a group of units of individual who are related to each other by blood, share a common roof, joined in food and worship and common ownership property rights is known as Hindu joint family. The concept of Hindu joint family has been recognized by Mitakahsra School of law and the same is known as coparcenary. The coparcenary usually has a male ancestor followed by three generations of male descendants. The coparcenary property is inherited by the way of survivorship and the same is usually inherited by male descendants. If a coparcener dies interstate, i.e., without a will the property will be inherited by the remaining coparceners by the way of survivorship. The Hindu Succession Act, 1956 deals with the law governing the matters of succession and the concept of coparcenary has been determined under HSA, 1956. Before 2005, the rights to the coparcenary property were held by only the male members of the family. Women were allowed ownership rights on their own property but married women specially did not have any rights in the ancestral property of the family. The concept of survivorship was demolished by the HSA, 1956 and the property was divided on the basis of legal heirs. Still the HSA act, 1956 followed discrimination among and men and women. The daughters do not have any right in their father’s property after marriage as it was believed that after marriage the daughter belongs to a different Hindu undivided family.

The act discriminated solely on the basis of gender and Article 14 was violated. In the year 2005, the Hindu Succession Act, 2005 (the ‘Amendment Act’) introduced an amendment which allowed the married women also to have right in the father property. After the amendment of 2005, the daughter whether married or unmarried has a right in their father’s property. The daughter was also entitled with the same rights and liabilities as a son after the 2005 amendment. It was held that the daughter has the same rights in the father’s property if the father is alive in the year 2005. The idea to give the 2005 amendment a retrospective effect was objected by the government. The daughter does not, under the 2005 Amendment, have the right to reopen any partition done before the year 2005. For the same reasons, the date of 20the December 2004 was fixed to avoid the reopening of any previous settlement made in the interest of the property. The same was accepted by the court but if the partition has been dec iced by an oral decree then the daughter cannot be denied the right to reopen any partition. If an oral settlement is to be presented it has to be supported “by public documents.” After the 2005 amendment the act allowed the daughters to be included in the coparcenary property. The daughter will become a coparcener in the same as a son. If any Hindu dies, the property will be allotted to the son the same way it will be allotted to the daughter. The daughter has the right to demand a partition in a Hindu undivided family. If the female coparceners die before the partition, the children of the female have a right in the partition. For the applicability of the amendment, confusion persisted for a very long time.

In the case of Prakash and other v. Phulvati it was held that “the rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.” It simply means that if a coparcener (father) had passed away prior to Sept 9, 2005, the living daughter of the coparcener would have no right to coparcenary property in such case. In the case of Danamma v. Ammar, t was held that if the father is not alive on 9.9.2005 and the suit for partition is still pending by a male coparcener, the female will have a right in the same. This view was opposite to the view held in the case of Phuvalti. This confusion was given a rest in the year 2020. In the case of Vineeta Sharama v. Rakesh Sharma the Supreme Court gave a full right to the daughter irrespective of the fact that if the father was alive in 2005 or not. In this case the two sisters demanded a right in their father’s property after his death and was denied by the court on occasions but the supreme court held the view that the daughter have an equal right in their father’s property same as the son irrespective of the fact that father dies before or after the amendment of 2005. Therefore, according to the recent judgement passed a retrospective effect has been given to the 2005 amendment which allows the daughter to have a full right in the parental property irrespective of the fact that if he was alive in the year 2005 or not. The daughters now have a full right in the parental property.