Jus Rerum 2020-09-07: 8 Min

ANCESTRAL PROPERTY RIGHTS IN HINDU SUCCESSION ACT

Author: Suhani Gupta

Student of University of Petroleum and Energy Studies, School of Law

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INTRODUCTION: -

In the business named; Hindu Undivided family, Karta is solely responsible for the control and management of the HUF, and the rest of the family members are called coparceners. The son born in the family became a HUF member since birth and was given the coparcener's status, but the daughter was not recognized as the coparcener during the lifetime. This provision was embedded in the Hindu Succession Act, 1956, but as this provision violated women's rights and proved as a point of discrimination against women. Post to the framing of the Hindu Succession Act 2005, the females have been given equal rights and liabilities in the family. They will also be considered coparceners from birth. Similarly, property rights will also be given to all females. The issue that arises before the supreme court was that if the amendment brought in 2005 has the retrospective effect or not, i.e., if the females born before the judgment date, 9/9/2005 can claim for rights as coparceners or not.

In Vineeta Sharma v. Rakesh Sharma & Ors[1], the supreme court on August 11, 2020, held that the women born before 2005 could also claim rights and share in ancestral property.

WHO IS A HINDU AS PER HINDU SUCCESSION ACT? 

Hinduism can be defined as a person who follows Hinduism's culture and ideas; these are the people inclusive of Jain, Sikhs, and Buddhists who devote themselves to Hinduism's social and religious practices. As per the definition of law, Hindu can be defined as a person who is not Christian, Muslim, Parsi, or Jew by religion.  

PROVISIONS BEFORE 2005 AMENDMENT: -

Hindu laws recognize the Hindu Undivided family; it is a business run by a Hindu family and its members. This type of business is only prevalent in India and has equal status as any other business, say a company or sole proprietorship. Section 6 of the Hindu succession act[2], 1956 earlier, recognized only male members to share in the business's property owned at HUF. The females were regarded as members of the HUF but not the coparceners. Only coparceners would be entitled to have succession and inheritance in the property, i.e., the family's females, whether wife, unmarried daughter, will be considered a business member. The females in the family can get the maintenance and share in the property when their partition occurs. There was a provision that after the daughter's marriage, she is not entitled to the share and maintenance in the property; she shall also be discarded as a member of HUF.

HUF's control and management are done by the Karta, the male head of the family. This provision impliedly restricts any female authority on being appointed as Karta and leading the business.

PROVISIONS AFTER 2005 AMENDMENT: -

Section 6 of the Hindu succession act got amended after the landmark judgment dated September 9, 2005. The amended Section 6 of the Hindu Succession Act, 1956, which manages coparceners privilege in the HUF property, was an amendment in 2005, i.e., September 9, 2005. With this change, females have been put at standard with males, to the extent coparcenary rights in HUF property are concerned. Hence, females get all the rights affix along coparcenary, including the option to request partition of the property and turn into a Karta of the HUF. 

However, the females who are born in the family will get the coparcenary rights. Other female individuals, who entered the family by the dignity of marriage, would be treated only. The females will not be entitled to partition, but they can have the entitlement rights for claiming maintenance and shares.   

CAN THE 2005 AMENDMENT HAVE RETROSPECTIVE EFFECT?

After the Hindu succession act 2005, the case was challenged if any daughter was born in the family before September 9, 2005. Then can she be eligible to have coparcenary rights for the succession and share in the property, or if the father died before the coparcenary, then will she get the valid title? These were the issues raised by the public and challenged the same in different courts of the country. Some of the rulings of the various court are stated as under: -

  1. In Prakash v Phulwati (2015), a two-judge bench headed by Justice A K Goel held that the 2005 change's advantage could be conceded uniquely to "living daughters of living coparceners." This judgment was given on the same date; when the amendment came into force, i.e., September 9, 2015. 

  1. In February 2018, the reverse of the 2015 decision was ruled by a two-judge Bench headed by Justice A K Sikri; the bench held that the property would also be given to the daughters; even if the father died in 2001 and the daughters will be regarded as coparceners.

After marriage, a girl will not be eligible to be a member of her parental HUF but will keep being a coparcener. Accordingly, she is qualified for a partition of the HUF property and the Karta of the HUF if she happens to be the oldest coparcener of HUF.  

Indeed, even if the married daughter died, her children will be qualified for the property that she would have gotten if she was alive on the partition date. If a situation happens that none of her children is alive upon partition, the grandkids will be qualified for the offers that the girl would have gotten on a segment.

CASE LAW WHICH BROUGHT CHANGES AND ITS JUDGEMENT:-  

In Vineeta Sharma v. Rakesh Sharma landmark judgment dated August 11, 2020, the court held that the amendment brought in 2005 would be applied retrospectively. All the pending cases related to the same issue should be over within six months; means that females born before September 9 will also be entitled to the succession and rights in HUF property.

CONCLUSION: -

In my view, there were many provisions in the earlier act which suppresses the identity of a woman, but the applicability of the recent judgment passed by the supreme court grants the fundamental right of equality to females. A three-judge Bench led by Justice Arun Mishra decided that a Hindu female's entitlement to be a joint beneficiary to the property is by birth and doesn't rely upon whether her father was alive or not established in 2005.


End Notes

[1] MANU/SC/0582/2020

[2]The Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956 (India)


Bibliography

Websites Referred:

  1. Arun Mishra J.,  Vineeta Sharma Vs. Rakesh Sharma & Ors, Advocatekhoj (August 11, 2020), https://www.advocatekhoj.com/library/judgments/announcement.php?WID=13069

  2. India Today Web Desk, SC clears that women born before Hindu succession act (2005) also have ancestral rights, India Today (February 6, 2018 18:05 IST), https://www.indiatoday.in/education-today/gk-current-affairs/story/supreme-court-clears-that-women-born-before-hindu-succession-act-2005-also-have-ancestral-rights-1162549-2018-02-06

  3. Legal Correspondent, Daughters have equal birth right to inherit property: Supreme Court, The Hindu (August 11, 2020 16:45 IST) https://www.thehindu.com/news/national/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/article32325891.ece#:~:text=The%20Supreme%20Court%20on%20Tuesday,will%20have%20a%20retrospective%20effect.

  4. Tamanna Inamdar, Supreme Court ruling on Hindu Succession Act could open floodgates to fresh litigation,  Times Now News (Aug 12, 2020 16:12 IST), https://www.timesnownews.com/business-economy/economy/article/supreme-court-ruling-on-hindu-succession-act-could-open-floodgates-to-fresh-litigation/635838

  5. Balwant Jain, Property rights of a Hindu daughter under the Hindu Succession Act 2005, Housing.com (August 11, 2020) https://housing.com/news/these-are-the-property-rights-of-a-daughter-in-a-hindu-family/

  6. Apurva Vishwanath, Explained: Reading SC’s verdict on Hindu women’s inheritance rights, The Indian Express (August 17, 2020 11:37:40 am), https://indianexpress.com/article/explained/reading-supreme-court-verdict-on-hindu-womens-inheritance-rights-6550767/


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