India doesn’t have a Uniform Civil Code, which means the law in matters pertaining to inheritance and sharing of property differs for people from different faiths. The two important laws in regard to property share are the Hindu Succession Act, 2005 and the Indian Succession Act, 1925. Before getting into the nuances of these acts, we must understand two legal terms: testamentary and intestate. A registered will plays a significant role in testamentary succession; it supersedes all laws. For example, if a father legally bequeaths the whole of his property to his son through a will, that is final. Just like in the 2019 mystery film Knives Out, the owner of the property can leave it to a complete stranger, who is not his kin and kith. An intestate person is one who dies without writing a will. In that case, the property is divided equally between all his children irrespective of gender, according to the above-mentioned laws. Do Christians and Muslim women also have an equal share in the property of the father? Yes. A daughter is entitled to inherit an equal share as a son in the Christian law. But there is a need to re-examine the Muslim woman’s right to property. A daughter receives only half of the share of a son. Even if the father wants to give her an equal share through a will, existing laws do not permit it. There is strong opposition to it, and Muslim women are filing PILs asking for an amendment in the law. What rights do women have over their husbands’ property? Hindu, Buddhist, Jain and Sikh women: The property of the husband is equally divided between the wife and the children. Widowed women also have equal rights to their predeceased husbands’ property, as their children. If alimony and maintenance are settled, divorced women will have no claim over the property of the former husband, even though their children do. Muslim women are entitled to 1/8th of the share of the predeceased husband if they have children and 1/4th if they have no children. Christian, Paris and Jew women receive 1/3rd share of the predeceased husband if they have children and half of the share if they have no children. There is a popular sentiment in society that since women anyway receive valuable gifts from their parents during festivals, besides her share of dowry, she should not claim property from the paternal home. How does one address this? That is just a patriarchal strategy. Parents or brothers shower her with gifts at her marriage and exclude her from the big picture. But a woman is entitled to the properties of both her husband and her father. It is ironic how men expect their wives to bring property from paternal homes but are not willing to give the legitimate share to their sisters!
Now coming directly to the point I’ve been addressing through this article is that it is very often said “Once a Daughter, Always a Daughter”. One of the most important authorities and highest court of law in the hierarchy upheld the judgement in 2020 wherein a judge bench of Justice Arun Mishra, Justice S Abdul Nazeer and Justice MR Shah of the Supreme Court of India removed all the ambiguities arising in the 2005 Amendments to the Hindu Succession Act, 1956. In Hindu Law, for the purpose of inheritance, Property is classified into two types: (1) Joint Family Property and (2) Self-Acquired Property. Essentially, all Property inherited by a son from their father, paternal grandfather, and paternal great-grandfather is considered Joint Family Property. All other Property is considered Self-Acquired Property. Depending on where you reside in India, the character of these types of properties is either the same or different. In regions where this distinction is followed: Joint Family Property is inherited differently (compared to Self-Acquired Property). Multiple persons have rights over the Joint Family Property by birth. This is unlike Self-Acquired Property, over which rights can be acquired only if you have acquired them yourself. The rights of both sons, and daughters, to inherit, acquire, hold, and dispose of the Self-Acquired Property of their ancestors is essentially the same everywhere. However, in regions where this distinction is maintained, daughters did not enjoy the same rights as sons in Joint Family Property for a long time. Daughters were at a disadvantage compared to sons in terms of both their rights to control the property and their rights to inherit it. Legislation after legislation has gradually diluted this inequality over the past century. Finally, with the enactment of the Hindu Succession (Amendment) Act, 2005, sons and daughters now have equal rights to inherit the Joint Family Property of their ancestors. In Phulavati Case, the Supreme Court held that Sec. 6 would apply only when the coparcener (person who acquires interest in the joint family property by birth) and his daughter, both were alive on the date of commencement of the 2005 Amendment. In Danamma Case, while the Supreme Court agreed with the principles laid down in Phulavati Case, it held that the 2005 amendment confers upon the daughter of the coparcener, the status of coparcener in her own right in the same manner as the son and accordingly, the female coparcener was given a share upon partition even if the father had died before the 2005 Amendment came in force. The principle arguments made by the Union of India (UOI) were that the exclusion of a daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. Further the conferment of rights on the daughter does not disturb the rights which got crystallised by partition before 20 December 2004. The decision in Phulavati Case failed to appreciate that coparcenary rights accrued by birth by operation of law, and death of a coparcener was only relevant for the succession of his coparcenary interest at the time of partition. Thus, the daughter of a coparcener had herself become a coparcener on her birth and her father need not have been alive on the commencement of the 2005 Amendment. UOI also argued that the purpose of inserting explanation to Sec.6(5) necessitating the partition to be registered was to avoid any bogus or sham transactions. The requirement of registration was directory and not mandatory. Any family arrangement or oral partition relied upon would have to be proved by leading documentary evidence. On the other hand, the Amici Curiae submitted that there was no conflict between the decisions in Phulavati Case and Danamma Case as both held that Sec.6 was prospective in application. The scheme of Sec.6 was future and forward-looking. Thus, only the daughter, whose coparcener father was alive on the commencement of 2005 amendment, would be treated as a coparcener. The Court while reaching to the conclusion historically analysed the Hindu Law, the concept of Joint Hindu Family and formation of coparcenary to arrive at its decision. The Court opined that unobstructed heritage takes place by birth while obstructed heritage takes place after the death of the owner. Under Sec.6, rights are given by birth, which is unobstructed heritage, independent of the owner’s death. Thus, the coparcener father need not be alive on the date of substitution of Sec.6 that is on 9 September 2005. The provisions of Section 6 are retroactive in nature and not retrospective as even though the right of a coparcener accrued to the daughter by birth, it could be claimed only from the date of the 2005 Amendment. The coparcenary right to be claimed by a daughter with effect from commencement of 2005 Amendment is subject to any disposition or alienation, testamentary disposition of the property or partition which had taken place before 20 December 2004. The finding in Phulavati Case that the rights under Sec.6 accrue to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters were born, was misconceived. Phulvati Case overlooked the concept of creation of a coparcenary at birth and was accordingly overruled. The decision in Mangammal v. T.B. Raju which followed Phulavati was also overruled while the decision in Danamma Case was partly overruled. The Court categorially opined that mere filing of a suit for partition does not bring about partition. In fact, any subsequent change in law from the time of filing the suit, could also be taken into consideration before passing of the final decree. Although, the Explanation to Sec.6(5) contemplates partition only by the virtue of registered partition deed or partition effected by a decree of court, the Courts could recognize oral partition in exceptional cases based upon long standing evidences in the form of contemporaneous public documents. At the end, the Court has directed that since significant delay is caused due to these conflicting decisions, all the High Courts and subordinate courts will dispose of cases involving this issue, as far as possible, within six months. To encapsulate, this case operates on the premise that the intent of Section 6 of the Act as amended by the 2005 amendment was to neither confer its benefits to female successors prospectively nor for that matter retrospectively, but it was to confer benefits retroactively. A legislation applies retroactively when it prescribes benefits conditional upon an eligibility, that may arise even prior to the passing of such legislation. While explaining the concept of retroactive application in relation to 2005 amendment, it was held that the 2005 amendment makes available to female successors, the benefit of succession on par with that of her male counter parts based on an antecedent event, that is her birth. In so far as the self-acquired property is concerned, daughters are class I heirs and entitled to an equal share as that of a son in every intestate succession. As an outcome of this decision, the daughters will now also have an equal right in ancestral property and their father’s Joint Family property.
Before the amendment in 2005, an oral partition was permissible, with the burden of proof on the person who claims there was an verbal division. But the amended Section 6(5) of the Hindu Succession Act says a “partition” can be effected by any registered deed or a court decree. It was argued in the top court that the need for a registered partition deed was not mandatory. But the court noted that section 6 intends to ensure daughters are not deprived of their rights of obtaining their share on becoming a coparcener. “The court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on an unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognised under section 6(5),” it observed. The court, therefore, ruled that a plea of oral partition cannot be legally accepted. However, it may be accepted in exceptional circumstances if it is supported by public documents. Although the verdict deserves appreciation for achieving the necessary objective of gender equality and gender justice, the fact that it almost took 15 years to be finally settled reflects the long journey towards justice. In this meantime, many women would have been left without their legitimate coparcenary share who were otherwise entitled to claim their rights under Section 6 of the Amended Act. Now coming back to judgements made in this respect recently, Earlier the 2005 Amendments to the Hindu Succession Act, 1956, recognised and provided an equal share to the daughter, whether married or not, in parental property, with the condition that the father and the daughter, both should be alive as on September 9, 2005, the day when the said amendment was made. The amendment, though relevant, left a lot of ambiguity and provided loopholes to many to suit their purpose. It failed to cover all women in its ambit. ruled out all ambiguities and stated that a daughter has equal right to property, thus recognizing her as a coparcener equal to a son, irrespective of her status or whether her father had been alive as on September 9, 2005, hence making the Amendment more open and its applicability without any conditions. Thus it has ensured that the scope of its implementation should reach all women in essence. The decision by the Apex Court of India is historic in itself. It gives daughters unequivocal inheritance rights to parental property. So a son and a daughter are both deemed equal. That’s now the law, and it leaves no ambiguity for its application. The earlier Amendment was historic too, but did not recognise the absolute rights of a daughter as was the case of a son, and thus the enforceability defeated its basic purpose and intent. The son’s right to property has always been considered absolute and there are still no questions about it. The recent judgement this year which came on an appeal against the Madras High Court verdict, dealt with the property rights of Hindu women and widows under the Hindu Succession Act. “If a property of a male Hindu dying intestate (without a will) is a self-acquired property or obtained in the partition of a coparcenary or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals (such as sons/daughters of brothers of deceased father),” a bench of justices S Abdul Nazeer and Krishna Murari said. The bench was dealing with the legal issue concerning the right of the daughter to inherit the self-acquired property of her father, in the absence of any other legal heir. It also dealt with also dealt with the question of whether such property will devolve on to the daughter upon the death of her father, who died without a will, by inheritance or shall devolve on to “father’s brother’s son by survivorship”. Right of a widow or daughter to inherit the self-acquired property or share received in the partition of a coparcenary property of a Hindu male dying intestate is well recognized not only under the old customary Hindu Law but also by various judicial pronouncements,” the verdict said. Referring to the legal provision, it said the legislative intent was to remedy the limitation of a Hindu woman who could not claim an absolute interest in the properties inherited by her but only had a life interest in the estate so inherited. “The basic aim of the legislature in enacting Section 15(2) (of the Hindu Succession Act) is to ensure that inherited property of a female Hindu dying issueless and intestate, goes back to the source,” it said. Dealing with the facts of the case, the bench set aside the trial court and the high court’s findings dismissing the partition suit of the daughters. The apex court said since the property in question was admittedly the self-acquired property of a father despite the family being in a state of jointness upon his death intestate, his sole surviving daughter will inherit the same by inheritance and the property shall not devolve by survivorship. Thus, the impugned judgement and decree dated March 01, 1994, passed by the Trial Court and confirmed by the High Court vide judgment and order dated January 21, 2009, are not liable to be sustained and was hereby set aside, the court stated. Referring to the ancient texts and Smritis, Justice Murari said, “It is clear that ancient text as also the Smritis, the commentaries written by various renowned learned persons and even judicial pronouncements have recognized the rights of several female heirs, the wives and the daughter’s being the foremost of them.” This could potentially open up disputes over properties partitioned prior to 1956 in which the daughters were not given any share and could result in the daughter’s heirs seeking to reclaim their rights over the properties. Accepting arguments of advocate P V Yogeswaran, counsel for the woman petitioner, the bench said succession of properties prior to 1956 would also include the daughter’s right. “If a property of a male Hindu dying intestate is a self acquired property or obtained in partition of a coparcenary or a family property, the same would devolve by inheritance and not by survivorship, and a daughter of such a male Hindu would be entitled to inherit such property in preference to other collaterals.” It said, “The rights of women in the family to maintenance were in every case very substantial rights and on whole, it would seem that some of the commentators erred in drawing adverse inferences from the vague references to women’s succession in the earlier Smritis. The views of the Mitakshara on the matter are unmistakable.”
A law in writing does not ensure an end to discrimination. For equality to become a practice, society needs to accept it. And going by the norms of the society it’s still a stigma to seek equal rights in the property. Society by its pressures and rules denies daughters their inheritance rights. The earlier amendment to the law too, by its various loopholes discriminated against daughters of the family. And for those women struggling and stranded in abusive and difficult marriages, where the parents also refuse to accept them, this amendment would ensure that they get their rightful share as recognised by law.