Daughter’s Right in Parental Property

It’s a historical stigma that the Indian society had been living with, which is discrimination of women against its male counterparts. Daughter’s parents, from times in memorial, had been forced to pay huge amounts in dowry, to marry off their daughters or they would be killed by Religious preachers, on the eve of their widowhood, to snatch away all the property left by her husband.
We should thank the Britishers for mitigating the agony of the widows, who eradicated the inhuman practice of ‘Sati’. However, for many years, our constitution, which propagates equality, could not stop discrimination on the basis of gender, in respect of Laws of inheritance.
Through this article, I intend to take you along the historical development of the inheritence Rights of women, in India under the Hindu Succesion Act, 1995 as amended in 2005.

If property is ancestral

If property has been self-acquired by father

In the case of a self-acquired property, that is, where a father has bought a piece of land or house with his own money, a daughter is on weaker ground. The father, in this case, has the right to gift the property or will it to anyone he wants, and a daughter will not be able to raise an objection.
The Hindu Succession Act 1956 was amended in 2005, allowing daughters an equal share in ancestral property.
The Hindu Succession Act 1956 was amended in 2005, allowing daughters an equal share in ancestral property.

If father dies intestate

If the father dies intestate, that is, without leaving a will, all legal heirs have an equal right to the property. The Hindu Succession Act categorises a male’s heirs into four classes and the inheritable property goes first to Class I heirs. These include the widow, daughters and sons, among others. Each heir is entitled to one part of the property, which means that as a daughter you have a right to a share in your father’s property.

If daughter is married

Before 2005, the Hindu Succession Act considered daughters only as members of the Hindu Undivided Family (HUF), not coparceners. The latter are the lineal descendants of a common ancestor, with the first four generations having a birth right to ancestral or self-acquired property. However, once the daughter was married, she was no longer considered a member of the HUF. After the 2005 amendment, the daughter has been recognised as a coparcener and her marital status makes no difference to her right over the father’s property.

If daughter was born or father died before 2005

It does not matter if the daughter was born before or after September 9, 2005, when the amendment to the Act was carried out. She will have the same rights as a son to the father’s property, be it ancestral or self-acquired, irrespective of her date of birth. On the other hand, the father has to have been alive on September 9, 2005 for the daughter to stake a claim over his property. If he had died before 2005, she will have no right over the ancestral property, and self-acquired property will be distributed as per the father’s will.

How the Hindu succession act came into being

Prior to 1956, Hindus were governed by property laws which varied from region to region and in some cases within the same region, from caste to caste.
The Mitakshara school of succession which was prevalent in most of north India, believed in the exclusive domain of male heirs. In contrast, the Dayabhaga system did not recognise inheritance rights by birth and both sons and daughters did not have rights to the property during their father’s lifetime. At the other extreme was the Marumakkattayam law prevalent in Kerala which traced the lineage of succession through the female line.
Former Prime Minister Jawaharlal Nehru championed the cause of women’s right to inherit property and despite resistance from orthodox sections of Hindus, the Hindu Succession Act was enacted and came into force on on June 17, 1956.
Many changes were subsequently brought about that gave women greater rights but they were still denied the important coparcenary rights.
The act was eventually amended in 2005, with daughters being recognised as coparceners, giving them an equal share in ancestral property.
Under the Hindu law, property is divided into two types: ancestral and self-acquired. Ancestral property is defined as one that is inherited up to four generations of male lineage and should have remained undivided throughout this period. For descendants, be it a daughter or son, an equal share in such a property accrues by birth itself. Before 2005, only sons had a share in such property. So, by law, a father cannot will such property to anyone he wants to, or deprive a daughter of her share in it. By birth, a daughter has a share in the ancestral property.
Until the Hindu Succession Act, 1956, was amended in 2005, the property rights of sons and daughters were different. While sons had complete right over their father’s property, daughters enjoyed this right only until they got married. After marriage, a daughter was supposed to become part of her husband’s family.
Under the Hindu law, a Hindu Undivided Family (HUF) is a group comprising more than one person, all lineal descendants of a common ancestor. A HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith.

Daughters’ rights in Hindu Succession Act, 2005

Earlier, once a daughter was married, she ceased to be part of her father’s HUF. Many saw this as curtailing women’s property rights. But on September 9, 2005, the Hindu Succession Act, 1956, which governs the devolution of property among Hindus, was amended. According to Hindu Succession Amendment Act, 2005, every daughter, whether married or unmarried, is considered a member of her father’s HUF and can even be appointed as ‘karta’ (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons.
Earlier, according to the ruling, a daughter can avail of the benefits granted by the amendment only if her father passed away after September 9, 2005. and the daughter is eligible to be a co-sharer only if the father and the daughter were alive on September 9, 2005. However, on February 2, 2018, Supreme Court has made it a general rule that a daughter, living or dead, on the date of amendment will be entitled to share in father’s property, thus making her children too to claim this right.

Equal right to be coparceners

A coparcenary comprises the eldest member and three generations of a family. It could earlier comprise, for instance, a son, a father, a grandfather, and a great grandfather. Now, women of the family can also be a coparcener.

• Under the coparcenary, the coparceners acquire a right over the coparcenary property by birth. The coparceners’ interest and share in the property keep on fluctuating on the basis of the number of members according to the birth and death of the members in the coparcenary.
• Both ancestral and self-acquired property can be a coparcenary property. While in case of ancestral property, it is equally shared by all members of the coparcenary, in case of self-acquired, the person is free to manage the property according to his own will.A member of the coparcenary can also sell his or her share in the coparcenary to a third party. However, such a sale is subject to the Right of Pre-emption of the remaining members of the coparcenary. The remaining members, however, have the “right of first refusal” over the property, to stop the entry of an outsider.
• A coparcener (not any member) can file a suit demanding partition of the coparcenary property but not a member. Thus, the daughter, as a coparcener, can now demand the partition of her father’s property.

Property rights of a daughter before 2005

The Hindu property act recognises the concept of HUF, which means a family of persons who are lineally descended from a common ancestor and related with each other by birth or marriage. The people who are so descended from commons ancestors, were divided in two parts. In the first category are coparceners. Only males were recognised as coparceners of the HUF and all the females were called members. All the coparceners are members but vice-versa is not true.
The rights of coparceners and members in the property of the HUF, are different. Coparceners have the right to ask for partition of the property and to get the shares. Members of the HUF, like daughters and mothers, had the right of maintenance from HUF property, as well as to get a share in the property of the HUF as and when partition of the HUF took place. Upon marriage, the daughter would cease to be a member of the HUF of the father and would thus, no longer be entitled to the right of maintenance as well as to get a share in the property of the HUF, if the property were partitioned after her marriage. As only a coparcener was entitled to become the Karta of the HUF, the female members were not entitled to become a Karta of the HUF and manage its affairs.
See also: How nomination affects property inheritance

Daughter’s right to property after 2005

Section 6 of the Hindu Succession Act, 1956, which deals with coparcener’s right in the HUF property, was amended in 2005 w.e.f September 9, 2005. With this amendment, daughters have been put at par with sons, as far as coparcenary rights in HUF property are concerned. Consequently, the daughter gets all the rights attached with coparcenary, including the right to ask for partition of the property and to become a Karta of the HUF.
However, only the daughters who are born in the family, will get the coparcenary rights. Other female members, who come into the family by virtue of marriage, are still treated as members only. Thus, they are not entitled to ask for the partition but are entitled for maintenance and shares as and when partition takes place.

Married daughter’s right to property under Hindu Succession Amendment Act 2005

After marriage, a daughter will cease to be a member of her parental HUF, but will continue to be a coparcener. Thus, she is entitled to ask for partition of the HUF property, as well as to become the Karta of the HUF, in case she happens to be eldest coparcener of her father’s HUF.
Even in case of a married daughter who has died, her children shall be entitled to the shares that she would have received, if she was alive on the date of the partition. In case none of her children are alive on the day of partition, the grandchildren will be entitled to the shares that the daughter would have received on partition.
Interestingly, the daughter cannot gift her share in the HUF property while she is alive but she is fully capable of giving away her share in the HUF property by way of a will. If a will is not prepared, on her death, her share in the joint property shall not devolve on other members of the HUF but will pass on to her legal heirs.
Hence all property which a man inherits from a direct male ancestor, not exceeding three degrees higher than himself, is ancestral property, and is at once held by himself in coparcenary with his own male issue.
The Hindu Succession Act, 1956, which originally did not give daughters equal rights to ancestral property, was amended in 2005 to give married daughters an equal right in parental property. But despite this amendment in law, some fathers deprive their daughter of ancestral property. So girls need to be very clear about their right. Here we list out five situations where daughters can/can’t stake a claim on father’s property.
1) In case of ancestral property
Before 2005 only sons had a share in ancestral property, which is defined as one that is inherited up to four generations of male lineage. However, after the amendment in the Hindu Succession Act, 1956, both daughter and son get an equal right to this property by birth. So, in such situations, a father cannot will such property to anyone he wants to. By birth, daughters have a share in the ancestral property.
2) In case the property is self-acquired by father
If a father has bought a property from his own money, then he has full right to gift the property to anyone he wants. In this case, if the father does not give a share to her daughter, then the daughter cannot raise an objection.
3) In case father dies without a will
If a father dies without leaving a will, then his property will be equally divided among all the legal heirs. According to the Hindu Succession Act, a male’s heirs are classified into four classes. In this case, the inheritable property goes first to class I heirs, which include widow, daughters and sons.
4) In case daughter is married
Prior to the amendment in the Hindu Succession Act in 2005, married daughters were not considered a member of Hindu Undivided Family (HUF). But after the amendment in 2005, daughters have been recognised as a coparcener and her marital status makes no difference to her right over father’s property.
5) If daughter was born or father died before 2005
For a daughter to stake a claim on her father’s property, the father has to have been alive on September 9, 2005, when the Hindu Succession Act was amended. If her father had died before 2005, she will not have any right over the ancestral property. But self-acquired property will be distributed as per the father’s will. However, date of birth of a daughter (if she is born before or after September 9, 2005) does not make any difference to her right over father’s property, be it ancestral or self-acquired.
The Hindu Succession (Amendment) Act, 2005, gives the status of a coparcener on daughter giving the equal rights (with the son) on an ancestral property. Only male members of family were coparceners before the amendment which has modified the Section 6 of the original Hindu Succession Act of 1956, which does not mention the daughter’s right in coparcenary property.

Consider a situation where you’ve been married young, without much education or earning potential, and end up being harassed by your husband and his family.

To make matters worse, your parents are not too keen to support you and the brothers don’t want to give you a share in the ancestral property. What do you do?

Financial dependence, be it on the father, brothers or husband, has been at the root of much hardship for women over the years. It was with the idea of levelling th ..

“coparcener” (one who shares equally in inheritance of an undivided joint family property, and since 2005 this applies equally to both sons and daughters
A ‘coparcener’ is a lineal descendant who is within four degrees from a common ancestor, and such person acquires an undivided interest in the HUF property immediately at birth.