Evolution of Daughter’s Right to Ancestral Property under Hindu law

Introduction

The research paper discusses about the evolution of the daughters right to the property under the Hindu Law. By property it is meant as the ancestral property acquired through the concept of coparcenary  by the Coparceners. It therefore excludes from the purview of property, the concept of Streedhan as there is a difference between the right to Streedhan and the right to ancestral property acquired through coparcenary, that will be discussed further in the paper. It starts from the rights the daughters enjoyed during the ancient times of Mitakshara prevalence to the modern times up to the present decade of the twenty – first century.

From time immemorial, it is evident that women are not considered equal to men, apart from the times during the Vedic era. They were considered as less responsible and thus more susceptible towards not able to take care of their property. It is for this reason that that they were not entrusted with the property. But, with the lapse of time and the ascent of concepts of equality and non- discriminatory provisions, it was realised that daughters too need to enjoy the same property rights as sons. Thus, came the advancements in the Hindu property and succession laws, that will be discussed further.

Meaning of Coparcenary

To begin with, let us understand the meaning of coparcenary. The concept of coparcenary evolved dating back to the time when the schools of Hindu law were prevalent and governed the Hindu personal laws. There are two schools of Hindu law i.e., Mitakshara and Dayabhaga Schools and Mitakshara school is most wide -spread over the territory of India. In today’s time, however, these schools come to play only in matters where no laws and provisions are specifically made.

So, the coparcenary concept was brought in by this Mitakshara school. In the concept, it is stated that for any Hindu, there is a presumption that he is a part of the Hindu Joint Family[1] and that this presumption of jointness shall continue until partition takes place[2]. This presumption of jointness is considered in their jointness of food, worship, and estate. However,  the mere fact of them living separately does not infer to the conclusion that they are not joint[3].

Now, this joint family will have some properties as well and since the family is presumed to be undivided, therefore, the property too will belong to every one of the family.  Here comes the concept of Coparcenary.  As per Mitakshara school, the property of a joint family belongs to a common ancestor and his three lineal male descendants[4].

It means that everyone from a father to his sons , his grand sons and his great grand sons will be treated as co parceners and all will enjoy equal property rights from the moment they are born in the family on the basis of the principle of Community of Ownership and Unity of Possession.  If one dies, then the property will again be redivided among the surviving members as afresh based on the Survivorship principle. And this is how the property gets carried on from generation to generation by the male descendants of any Hindu joint family.

From above, it is very clear that women were not conferred with any right on the  ancestral property in the ancient Hindu family. The most they were given were the right to be maintained from this joint property and get married from such funds. However, this can be very clearly observed that this right was not made exclusively for the well- being of women. Rather, it was a general right of every member of a joint Hindu family to get maintenance from the family.

The only slight privilege that daughters enjoyed was that even after the partition, they could be given maintenance, unlike the coparceners of the joint family, who got their distinct set of property as per the partition and no longer enjoyed share from the previous joint property. But the privilege of getting a proper set of property and enjoying the rights as a coparcener is far more of a secure and dignified position than the privilege of continued maintenance.

Apart from this, the daughters enjoyed exclusive rights only in their Streedhan, that is not even regarded as a part of the ancestral property. It must be noted that since there are a huge number of Smritikars and commentaries, there exists variations about every aspect of the ancient laws and Streedhan is not at mercy too. It was clearly pointed out by Gooroodass Bnaerjee that : “the difficulties besetting an enquiry into the question what constitutes stridhan, arise from the fact that majority of sages and commentators give neither an exact definition of stridhan, nor an exhaustive enumeration, and if the Mitakshara gives a simple and intelligible definition , that definition has been qualified and restricted in its application by our courts in consequences of its disagreement with the view of other authorities[5].” Keeping this in mind, there is a wide, common notion of Streedhan as per the commentators, Smritikars and Digest- writers, that it is the Gifts (mostly of movable nature) that a women gets at her marriage ceremony from her relatives or strangers.

Now, if we compare Coparcenary rights on the property with that of the maintenance and Streedhan received by the daughters where they enjoy restricted and absolute rights respectively, there is a clear proof of inequality and discrimination, without a doubt, in the entire ancient law governing the property rights. Neither a conditional maintenance nor an absolute right over her gifts can do away with the discriminations done to the daughters in the ancient times.

This was the plight of women not only until the uncodified laws prevailed but even during the early decades of the twenty -first century, much after the commencement of the Hindu Succession Act, 1956. This can be proved from a landmark case where it was held that even if a Hindu joint family deliberately wanted to make a female heir as co- parcener of the property by entering into an agreement, then it would not be a valid agreement and they will not be given the status of coparceners[6].

\It must be though noted that there were few attempts to uplift this position of women in the family through the introduction of certain statutes like the Indian Succession Act 1925 or the statute of Hindu Women’s Right To Property (Amendment) Act 1938. The honourable Supreme Court also tried to expand the purview of property rights to women in the Devadasi community so that they can too enjoy the status of coparceners[7] . These efforts were, however, minimal and did the least to bring daughters at par with the sons in the property matters. Later, these were scraped out of existence and a uniform statute of the Hindu Succession Act came into being in the year 1956, which proved to be more discriminatory as it was in same lines as of Mitakshara school and perpetuated the idea of patriarchy. Women were again left behind of men, of time and of humanity.

Hindu Succession Act, 1956

In the year 1956, came the codified law for succession, namely the Hindu Succession Act. It was act based on the principles of Mitakshara school i.e., Survivorship[8]. It too believed that daughters need not have a right in the property. The reason for such difference was that since daughters will be married someday, therefore, she will already get a share in the husband’s property. However, it the husband side, she was neglected too as she was not a direct blood relative of the ancestor, so she could not be counted as the lineal descendant. Thus, daughters were not given any kind of relief from this enactment too.

However, the Apex court as always,  tried to decrease this gender disparity this time too. For example, in the case ofV Tulasamma vs. V Sesha Reddy[9], the court observed that daughters should not only be maintained but should also be bestowed upon with certain property rights as by the sons.

 Hindu Succession Amendment Act, 2005

Later, in the year 2005, an amendment act was passed, namely the Hindu Succession Amendment Act, 2005, to finally bring about the equality between the daughters and sons. It restored all the rights that needed to be conferred to the daughters from the very beginning. It allowed daughters to become coparceners in the ancestral property. It stated that as a son gets the coparcenary right from the birth itself, by the virtue of community of interest, so does the daughter gets it. The daughters can also dispose off her property as and when wanted. It also secured her kids by stating that if a daughter dies just before the partition, then her share of the property will go to her children. Therefore, daughters became equal to sons.

It is important to note that with the coming of the amendment act, 2005, came various interpretations through the judgements. In this regard, there are some landmark judgements that shaped the nature of the statute as it is today to duly guarantee the daughters with equal rights on the ancestral property both on paper and in spirit.

In the case of  Komalam Amma vs. Kumara Pillai Raghavan Pillai and Ors[10], the scope of maintenance was widened, and it was held that maintenance meant providing for food, clothing, and shelter. And these basic necessities can be borne by the family by either supplying the daughter with money or by giving her a part of the property. This therefore meant that they had certain rights in the inheritance of the property, though not directly. Later, in the case of Prakash v. Phulavati[11],  the Supreme Court held that the amendment act 2005 has a prospective effect. It meant that whatever that happened before the commencement of this act on 9th September 2005, will work as per the survivorship principle.

If a daughter has to acquire the ancestral property, then she along with his father that is the coparcener should be alive on the date of the commencement of the Act. Also, if the daughter or the coparcener is dead then the property will be divided as per the survivorship rule under the Mitakshara law or the Hindu succession act 1956. Further, in the case of the Danamma v. Amar Singh[12], the prior judgement was held to be discriminatory, and it was ruled that the amended act should act retrospectively. This meant that if a father coparcener died even before 9^TH September, and the partition suit has not yet been decreed, then also the daughters will have a right in the property.

Finally came the latest judgement of Vineeta Sharma v. Rakesh Sharma and Others[13], where the Honourable Supreme Court held that daughters have always been subjected to disparities as compared to sons and thus, the purview of this Act should be above the retrospective or prospective nature of the Act. The court held that there should be a retroactive application of this statute.  Its main aim is just to bring about the equality among daughters and sons.  It emphasised that daughters are Coparceners since birth and this property is an unobstructed heritage and thus, does not depend upon the death of the coparcener, rather is bestowed upon since the birth of a new coparcener. Thus, it applies to every living daughter, alive from the commencement of the Act.

Conclusion

Therefore, justice prevailed. All the struggles, the inequalities subjected to daughters were put to rest. It has been a long journey for them and quite sure a painful one too. Not able to be regarded as an equal human being and a responsible human being for centuries at end is a deep scar on anyone’s soul. Finally, after having been through the tough times of all the historical injustices, the daughters are now at par with the sons.

This article has been contributed by Akarshita, student at Bennett University. The views are personal, if any.

End Notes

[1] Jagannath v. Lokanath, AIR 1981 Ori 52

[2] Rukhmabai v. Laxminarayan, AIR 1960 SC 335

[3] Kethaperumal v. Rajendra, AIR 1959 Mad 409.

[4] Family law, Paras Diwan, 11^th edition., 2018

[5] Hindu Law of Marriage and Stridhan, (3^rd Ed.) 280

[6] Commissioner, Income tax, Bihar 2, Ranchi v. Sandhya Rani Datta, AIR 2001 SC

[7] Chalakonda Alasani v.Chalakonda Ramachalam 1867(2) Mad.H.C.R.P.56

[8] Section 6, HINDU SUCCESSION ACT,1956

[9] AIR 1977 SC 1944

[10] AIR 2009 SC 636

[11]  Prakash & Ors. v. Phulavati & Ors. (2015) SCC ONLINE SC 1114

[12] Danamma v. Amar Singh (2018) 3 SCC 343

[13] Vineeta Sharma v. Rakesh Sharma & Ors. (2020) SCC ON;INE SC 641