DAUGHTER'S RIGHT IN ANCESTRAL PROPERTY.

DAUGHTER'S RIGHT IN ANCESTRAL PROPERTY

The Hindu Succession  Act, 1956 is an Act to codify the law relating to intestate succession among Hindus. Intestate succession means succession to property left by a Hindu without any testamentary instrument like Will, Settlement etc. The Act brought about important changes in the law of succession but without affecting the special rights of the members of a coparcenary.  Coparcenary consists of  a male Hindu, his son,  grand son (son’s son) and great grand son (son’s son’s son).  Daughters were excluded from succession to coparcenary property. The law by excluding the daughter from participating in the coparcenary ownership not only contributed to her discrimination on the ground of  gender but also led to oppression and negation of her fundamental right of equality guaranteed under Article 226 of the Constitution of India.  Parliament felt that non inclusion of daughters in the coparcenary property was causing discrimination to them and accordingly decided to bring in necessary changes in the law.  Accordingly Section-6 of the Hindu Succession Act, 1956 was substituted by a new provision vide the Hindu Succession (Amendment) Act, 2005 as follows:

'6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.  

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004".

        The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 09-09-2005.  Thus on and from 09-09-2005 the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.  The States of Tamil Nadu,  Andhra Pradesh, Karnataka  and Maharashtra  made necessary changes in the law giving equal rights to daughters in the ancestral property by enacting State amendments and in these states the daughters have been provided parity of rights in the co-parcenary property with effect from the dates notified by the said State amendments.  The effective dates are:- Tamil Nadu(25-03-1989),  Andhra Pradesh (5-9-1985)  Karnataka (30-07-1994) and Maharashtra (22-06-1994).  The State of Kerala abolished the joint family system by enacting the Kerala Joint Hindu Family System (Abolition) Act. 1975 with effect from 1-12-1976.

      The right accrued to a daughter in the ancestral property, by virtue of the Amendment  Act, 2005 is absolute, except in the circumstances provided in the amended Section-6.  The excepted categories to which new Section-6 is not applicable are two, namely, (1)  where the disposition or alienation including any partition which took place before 20-12-2004 and (2) where testamentary disposition of the property was made before 20-12-2004.