Married Daughters 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.


In theory, in the ancient times, the woman could hold property but in practice, in comparison to menís 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 Womenís Right to Property Act, 1937 was one of the most important enactment 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 womenís 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 Ė what was to be termed as Hindu widowís 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 fatherís 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 sonís 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 daughters 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 daughters 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".


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, 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.


Thus gender discrimination has been removed to a larger extent by the 2005 Amendment Act. Now married daughters without fear can claim equal right in the self acquired/ancestral property of their father. Still Radicals, the brothers, sister in laws and brothers children oppose in various ways the right of married daughters due to various nature of joint family properties and try to socially alienate married daughters on some pretext or other so that they give up their rights and here we provide comprehensive solution to their woes under no gender bias attitude of current Indian laws.



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