Married Daughter's Equal Right to Property

The property rights of women under the Hindu law :-There are four stages here, to wit, pre-1937, 1937-1956, 1956-2005 and post-2005 When the Amendment act 2005 came in existence with retroactive effect and the amendment act is Repealed thereafter in 2015 when its purpose was served and the Parliament Repealed the Amendment ACT 2005 and the amendment act 2005 act is now effective midnight from 12.01 AM from 17-6-1956 when the original act was passed. Recent SC judgement on 16-10-2015 has overlooked the Repealed ACT and is rectifiable in view of the justice and equity granted under constitution of India. The recent judgement in light of the SC/ST promotions in PSU banks is an example on rectifiable errors. The rights of the children of Married Daughter's are as equal as that of her brothers in self acquired properties of her father acquired from joint family nucleus in Hindu undivided family. If the properties titles are unchanged from her father's time to his 4th generation, the Married Daughter's children can claim the share as coparcenor in undivided properties by METS and BOUNDS. The Married Daughter's cannot alienate or will the undivided property of her father who died even before the amendment act 2005 which is now repealed and merged with original HSA act dated 17-6-1956 in case of ancestral properties falling under section 6 of the act where as in self acquired properties section 8 is applicable. If the Married Daughter's has got grand children like her brother's and the title of self acquired properties did not changed its colours from her father's time, the properties cannot be alienated or willed to any one without consent of her other coparcenors having direct coparcenory rights in her father's self acquired and ancestral properties.

In theory, in the ancient times, the woman could hold property but in practice, in comparison to men's holding, her right to dispose of the property was qualified, the latter considered by the patriarchal set up as necessary, lest she became too-independent and neglect her marital duties and the management of household affairs. This was the situation prior to 1937 when there was no codified law. The Hindu Women's Right to Property Act, 1937 was one of the most important enactments that brought about changes to give better rights to women. The said Act was the outcome of discontent expressed by a sizeable section of society against the unsatisfactory affairs of the women's rights to property. Even the said Act did not give an absolute right to women. Under the said Act a widow was entitled to a limited interest over the property of her husband what was to be termed as Hindu widow's estate. The Act was amended in 1938 to exclude the widow from any interest in agricultural land.

The Hindu Succession Act, 1956 introduced many reforms and it abolished completely the essential principle that runs through the estate inherited by a female heir, that she takes only a limited estate. The Supreme Court put a lot of controversy at rest by holding that the woman becomes the absolute owner under Section-14 of the Hindu Succession Act, 1956. The object of Section 14 is two-fold

The provision was retrospective in the sense that it enlarged the limit of the estate into an absolute one even if the property was inherited or held by the woman as a limited owner before the Act came into force. Any property acquired under the 1937 Act held in capacity of a limited owner was now converted to her absolute estate. The Hindu Succession Act, 1956 abrogates all the rules of the law of succession hitherto applicable to Hindus whether by virtue of any text or rule of Hindu law or any custom or usage having the force of laws in respect of all matters dealt with in the Act. Therefore no woman can be denied property rights on the basis of any custom, usage or text and the said Act reformed the personal law and gave woman greater property rights. The daughters were also granted property rights in their father'ís estate.

Under Section 8 of the Hindu Succession Act, 1956 the property of a male Hindu dying intestate (that is, without leaving any testamentary instrument like will, settlement etc.,) shall devolve on his son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son. Thus female heirs were granted property rights in the estate of the deceased male Hindu.

The above said Section applies to the self acquired property or the separate property of a male Hindu.

However Section-6 of the Act clearly states that in the case of joint family property, known as coparcenary property (ancestral), the interest of a male Hindu, on his death, would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the above said provision. Coparcenary consists of grandfather, father, son and son's son. However, if the deceased had left him surviving a female relative (daughter, widow, mother, daughter of a predeceased son, widow of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son) the interest of the deceased in the coparcenary shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

For example, A (who had an interest in the coparcenary property) dies leaving behind him his 2 sons B & C and a daughter D. When he was alive, B & C (sons) were members of the coparcenary and D (daughter) was not a member of the coparcenary. On the death of A, his daughter D will get only 1/3 share in the 1/3 share of her father in the Ancestral coparcenary property however it was equal in case of self acquired property of deceased Male. It means that the sons B & C will get 1/3 +1/9 each where as the daughter D will get only 1/9 shares in the ancestral property until 20-12-2004 if legal partition took place . This formula got now changed after passing of 2005 amendment act giving equal right to Married Daughter's in ancestral coparcenary property upheld in recent SC Judgment.

Under Section 23 of the Hindu Succession Act, 1956, where a Hindu intestate has left surviving him or her both male and female heirs and his or her property includes a dwelling house, wholly occupied by members of his or her family, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective share therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by, or has separated from, her husband or is a widow. The sec 23 got deleted in 2005 modified act and Married Daughter's irrespective of their marital status could demand partition of dwelling house at any stage.

No doubt, the above provisions of the Hindu Succession Act, 1956 are gender discriminatory and parliamentarians fought over 49 years to remove this gender bias. To remove the said gender discriminatory provisions the Hindu Succession (Amendment) Act, 2005 was enacted and the said Act came into force on 9th September, 2005 and it gives the following rights to daughters. It is said "daughters are daughters till their death, a son is a son till he marries". The modified act 2005 is repealed now and applicable with effect from 17-6-1956 in case of ancestral properties of married daughter's father. The intend of legislatures are important than interpretation of English language in cases where the intend of the parliamentarians is to remove gender bias and the confusion created by many on HSA amendment act 2005 was taken care by the parliamentarians and thereafter they decided to repeal the act and the act is merged with original act in case of the ancestral properties. The properties if remain undivided, the rights of great grand children are protected and if married daughter has any grand children , her share in her father's properties which remains undivided cannot be alienated by her in her individual capacities. There have been instances of the daughter of Md.Ali Jinnah taking shelter in HSA act. The great grand children of the properties which has taken shape of a ancestral nature can file suit directly and Married Daughter's cannot alienate the properties without consent of all coparcenors in writing which will be null and void if alienated .The married daughter can seek Receiver's on properties from competent courts and take injunctions from the competent court and if she has filed the case through her blood children by giving them power of attorney , The POA holder cannot be removed until partition takes by METS and BOUNDS under Indian contact act and case law's in such instances are favourable to the POA holder who should be direct blood .All the coparcenor's in the properties upto the children in wound of grand children have a coparcenory right. The Mitakshara and Dayabhaga law are now irrelevant after the modified act 2005 is repealed.

In a Joint Hindu family the daughter of a coparcener shall

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 now merged with original act , his interest in the property of a Joint Hindu family 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.

The above mentioned provision under Section 23 of the Hindu Succession Act, 1956 relating to right of residence in dwelling houses has been omitted under the Hindu Succession (Amendment) Act 2005 now repealed and merged with the original ACT.

Thus gender discrimination has been removed to a larger extent by the 2005 Amendment Act now repealed and merged with original act in case of ancestral properties and sec 8 was already in force from 17-6-56 in case of self acquired properties, more so if it is acquired from joint family nucleus,it takes shapes of ancestral properties. Now Married Daughter's and her grand children without fear can claim equal right in the self acquired/ancestral undivided property of their father. Still Radicals, the brothers, sister-in-laws and brothers children oppose in various ways the right of Married Daughter's due to various nature of joint family properties and try to socially alienate Married Daughter's on some pretext or other and become abusive, threatening which is common practice in few states where male dominated societies still exists so that Married Daughter's and their children give up their rights and here we provide comprehensive solution to their woes under no gender bias attitude of current Indian laws. There are instances where Married Daughter's brothers, sister-in-laws and their childrens pressurize the Married Daughter by threatening her of social boycott as well as instances of forcing her to sign documents without knowledge of her children and also doing forgeries which are against the law of the land. The children's of Married Daughter's can file criminal complaints in such cases.

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