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Background on Property Rights in India

Since medieval times till early 1900, Property Rights in India were governed by laws that differed from religion to religion,These property rights differed from region to region. 

Property Rights of Hindus before 1956, were governed by customary laws & Shashtric laws, these laws varied in some regions of India on caste basis. Mitakshara School of Thought largely governed the Hindu Property Rights.

Property rights of Hindus, Sikh, Jain & Buddhist after 1956, were governed by The Hindu Succession Act, 1956. 

Property rights of Muslims, were largely governed by the imams , imams relied upon the sources of law which the prophet himself directed, some of which are The Qur'an, Sunna or Ahadis, Ijma & Qiyas. Muslim Law is still largely uncodified, & for the said reason courts rely upon the primary sources of Shia Law & the sources above mentioned. Property Rights of Muslim married under The Special Marriage Act, 1954 are not governed by Muslim Law for the purpose of inheritance, instead it is governed by Indian Succession Act, 1925.

Property Rights of Persons of other religions were also customary in past but after 1925, Property Rights are governed by Indian Succession Act, 1925.

Daughter’s Right in Property under Hindu Succession Act, 1956

The Hindu Succession Act, 1956, divided property under to subsets, which were self acquired property & ancestral property. Before The Hindu Succession (Amendment) Act, 2005, ancestral property was inherited as the Survivor-ship rule.As per the survivor-ship rule, coparceners were the persons having right over the ancestral property. As per The Hindu Succession Act, 1956 at that time, coparcners were those who were lenial descendants of the same ancestor, till 3 generations next to holder. The flaw in this provision was that it only allowed the male descendants of an ancestor to become coparceners, and in turn the right in inheriting the property were only given to males. This restricted right to inherit property of any female from Hindu, Sikh, Jain & Buddhist communities.

In 2005, to curb this discrimination, The Hindu Succession (Amendment) Act, 2005 amended the provisions of The Hindu Succession Act, 1956, including Section 6 of The Hindu Succession Act, 1956.The said amendment deleted the Survivor-ship rule. The said amendment bought Intestate Rule for Ancestral Property or when the person dies without will & Testamentary Rule for Self Acquired Property. According to this, a person can give his or her self acquired property by the way of will(testament) to any person. In the case of ancestral property or when a person dies without will, intestate rules govern the inheritance given to the coparceners. Intestate rule create 4 classes of persons as coparceners, which are to be given equal amount of share in property among the classes. These classes include both male & female members of the family, with daughters included in the Class 1 Persons. This rule made daughters coparceners from birth & gave them equal liability. 

Confusions in the Implementation of The Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005, came into force from 9 September, 2005. Soon after the enforcement date, while implementation of the provisions of the said amendment, judicial minds started to ponder over the question, as to whether on 9 September, 2005, it is necessary for the father to be alive for daughter to claim its right in ancestral property?

In 2016, the above question was answered for the first time by a Supreme Court Bench in the case of Prakash & Ors. V. Phulavati & Ors. The two judge bench headed by Honourable Justice Anil Dave & Honourable Justice A.K. Goyal, held that for a daughter to claim its right in property, father needs to be alive on 9 September, 2005. As per this judgement, both coparcener and his daughter needs to be alive on 9 September, 2005 for the daughters right in property. This judgement restricted the daughters right in property, where the coparcener has expired before September 9, 2005. 

In 2018, the above question was again put before a Supreme Court Bench in the case of Danamma& Ors. V. Amar & Ors.. The two judge bench headed by Honourable Justice A.K. Sikri & Honourable Justice Ashok Bhushan, held that for a daughter to claim its right in property, father need not be alive as on September 9, 2005. As per this judgement, even though the coparcener have expired before September 9, 2005 in 2001(in this case), prior to the amendment in The Hindu Succession Act, 1956, the daughter can claim its right in her property. This judgement gave every daughter right to claim its right in the property.

The judgments, given in Prakash & Ors. V. Phulavati & Ors & Danamma& Ors. V. Amar & Ors., were giving conflicting opinions and no judgement was able to supersede the other judgement by authority, as both judgments were given by two judge Supreme Court Bench.

 The confusion created by these two judgments continued till 2020. In 2020, the question as to whether on 9 September, 2005, it is necessary for the father to be alive for daughter to claim its right in ancestral property, was again put before The Supreme Court in the case of Vineeta Sharma V. Rakesh Sharma & Ors. but this time the question was answered by a three judge bench, comprising of Honourable Justice Arun Mishra, Honourable Justice S. Abdul Nazeer & Honourable Justice M.R. Shah. The court held that Daughter’s Right in Coparcenary Property given under Section 6 of The Hindu Succession Act, 1956, for daughters born before September 9, 2005 has same rights as for daughters born on or after September 9,2005. The court further said that, the necessity of the father to be alive on September 9, 2005 is irrelevant and not required, as the daughter is alive on the September 9, 2005, she becomes coparcener from the date of amendment,I.e. September 9, 2005. The said amendment to Section 6 of The Hindu Succession Act, 1956, give status of coparcener to daughters born before or on or after September 9, 2005 in the same way it grant the status of coparcener to sons. As coparcener status under Section 6 of The Hindu Succession Act, 1956, is granted by birth it is not necessary for father of daughters to be alive on the  said date of amendment, I.e. September 9, 2005. This judgement ended the confusion and finally gave daughters their right in property.

The above judgement of Vineeta Sharma V. Rakesh Sharma & Ors., were relating to coparcenary/ ancestral property & not the self acquired property of father. Thus, the battle for rights were still not over.

In 2022, the question of daughters right in self acquired property was properly answered by the Supreme Court in the case of Arunachala Gounder (Dead) by Lrs V. Ponnusamy & Ors.. The two judge bench headed by Honourable Justice S. Abdul Nazeer & Honourable Justice Krishna Murari, held that  self acquired property of male dying intestate would be inherited by testament, and not secession & daughters will have right to inherit the said property or property obtained in partition in case of male expiring without testament or invalid testament. When female is expired instate without any children, then ancestral property inherited from father, the said property will be inherited by fathers heir in accordance with intestate rules. When a female is expired instate without any children, the ancestral property inherited from husband’s side, the said property will be inherited by husband’s heir in accordance with intestate rules. Thus, with this judgement daughters got their right in property.

Daughter’s Right in Property under Muslim Law & Law Governing Other Religions

Muslim Law does not create any division in ancestral property & self acquired property. Muslims can give 1/3 of their property as testament, the rest 2/3 is inherited by succession. Muslim law does not create division in right of male & female in property, but did create division in the ratio of property which can be given in succession, the share of female heirs is to be  half of male heirs. The reason for that under Muslim Law is given as the women are to receive mehr & maintenance from their husband upon marriage, they are not entitled to equal ratio of share in property. This does create a difference in rights of non married women. Property Rights of Muslim married under The Special Marriage Act, 1954 are not governed by Muslim Law for the purpose of inheritance, instead it is governed by Indian Succession Act, 1925.

In case of Christians, wife of the expired husband, recives1/3 part of property & rest is given to lineal descendants, in case of no lineal descendants, 1/2 part goes to the wife of the expired husband and the rest to other relatives, to be distributed equally to each children, in case of children expired, then to the  children’s children collectively.

Conclusion

Daughters, in India have gone through a long legal journey, to get their rights, though there are still some differences in rights given to daughters across religion, a uniform gender neutral statue on inheritance and succession can be the final step to grant everyone equal rights in relation to property.

References

• Indian Succession Act, 1925

• The Special Marriage Act, 1954

• The Hindu Succession Act, 1956

• The Hindu Succession (Amendment) Act, 2005

• Prakash & Ors. V. Phulavati & Ors., (2016) 2 SCC 36

• Danamma & Ors. V. Amar & Ors., (2018) 3 SCC 343

• Vineeta Sharma V. Rakesh Sharma & Ors., (2020) 9 SCC 1

• Arunachala Gounder (Dead) by Lrs V. Ponnusamy & Ors., (2022) SCC OnLine SC 72

Co-Author: Rudraksh Mathur