Every citizen of India is guaranteed equality before law and equal protection of the laws irrespective of his gender, caste, creed, and race. The Constitution of India also contains provisions for empowerment of women. The concept of equal social status to women also includes their right to hold and inherit property like the male members of the family. Despite the equality guaranteed by the law of the land, women in India had suffered a lot of inequalities. Prior to the enactment of the Hindu Women’s Right to Properties Act 1937, women were not entitled to a share in the Joint Family Property and succession was governed by survivor ship. As per the rule of survivor ship, on the death of a member of joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which was inclusive of only the male members of the family.
What is Coparcenary:
The Hindu Succession Act, 1956 gave
women equal inheritance rights with men. But the daughters were not given a
birth right in the ancestral property under the Mitakshara coparcenary.
Coparcenary refers to equal inheritance which was restricted only to male
members of the Hindu Undivided Family. It is a narrower body of persons within
a joint family. Coparceners jointly inherit property and have unity of
Coparcenary is limited to three generations next to the holder. If a man has
sons, grandsons and great-grandsons living, all of these constitute a single
coparcenary with him. The share of coparceners in the joint coparcenary
property was fluctuating which diminished and enlarged with the birth and death
of a coparcener in the family. No female was a member of the coparcenary in
Mitakshara law before the Hindu Succession (Amendment) Act, 2005. If the family
owned a dwelling house, then the daughter's right was confined only to the
right of residence and not possession or ownership. The daughter has been made
a coparcener by birth in the joint property after coming into force of the
Hindu Succession (Amendment) Act, 2005.
Right of Women Under Hindu Succession Act, 1956:
The Hindu Succession Act, 1956 dealt with law relating to intestate succession among Hindus. The properties of a Hindu male dying intestate devolves, in the first instance, equally on his sons, daughters, widow and mother and include the specified heirs of predeceased sons or daughters. Section 6 of the Act deals with devolution of interest in the coparcenary property. According to the Section 6 of the Act prior to the passing of the Amendment Act of 2005, the interest of a coparcener who died intestate shall devolve on others coparceners by rule of survivorship. According to the unamended Section 6, if the deceased died leaving behind a surviving female relative specified in Class I of Schedule I, or a male relative specified in that Class who claims through such female relative, or a male claiming through such female, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or interstate succession under this Act and not by survivorship. Thus, in Mitakshara coparcenary females could not inherit ancestral property. Thus, the provision contained in the unamended Section 6 of the Act, by excluding the daughters from participating in coparcenary ownership not only contributed to an inequity against females but had also led to oppression and negation of their right to equality.
The State Amendments:
The Hindu Succession Act containing the discriminatory provision was followed for about 49 years. But there were five states in India namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka who took the initiative to treat women equally both in the economic and the social spheres. States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka had inserted provisions wherein the daughter has been made a coparcener by birth in the joint family property in her own right in the same manner as the son. The state of Kerala, in addition to making the daughter as a coparcener has also abolished the right to claim any interest in any property of an ancestor during his or her lifetime founded on the mere fact that he or she was born in the family. It has abolished the Joint Hindu family system.
The Hindu Succession (Amendment) Act, 2005:
The Hindu Succession (Amendment) Act, 2005 was passed to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and to give equal rights to daughters in Hindu Mitakshara coparcenary property as the sons have. The Act aimed at making two major amendments in the Hindu Succession Act, 1956. Firstly it amended the provision which excluded the right of the daughters form the coparcenary property and secondly it omitted Section 23 of Act which dis entitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.
The main provisions of the Hindu Succession (Amendment) Act, 2005 are:
- In a Hindu Joint Family governed by Mitakshara law, the daughter by birth shall become a coparcener in her own right in the same manner as a son.
- She would have the same rights in the coparcenary property as that of a son.
- She shall be subject to same liabilities in respect of the said coparcenary property as that of a son.
- Any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
- Any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 shall not be affected or invalidated by reason of the amendment of Section 6 of the Act.
- Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and could be disposed of by her by testamentary disposition.
- Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, 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.
- In case of notional partition:
- The daughter is allotted the same share as is allotted to a son;
- The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter;
- The share of the pre-deceased child of a pre-deceased son or of a predeceased daughter, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be.
- The interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
- After the commencement of the Amendment Act, there shall be no obligation on the son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law.
- Nothing contained in amended Section shall apply to a partition, which has been effected before the 20th day of December 2004.
Effect of the Amendment Act on the Position of the Women:
The significant change that was brought by the Amendment Act was to make daughters coparceners in joint family property. After the amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and she would have the same rights in the coparcenary property as she would have had if she had been a son. With the rights that she acquire in the joint family property she also is subjected to the same liabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mithakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.
According to this amendment if the daughter dies intestate; her interest in coparcenary would devolve by succession in accordance with section 15 of the Hindu Succession Act, 1956. If the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner and after her death, if she dies intestate shall devolve upon her heirs as per section 15. The daughter now has the right to dispose of her interest in coparcenary by making a will and if she is a lone heir she shall become absolute owner of the property and shall also have a right to alienate it during her life time. This amendment also created a right to have a share in the joint property during the partition favour of children of the daughter and her pre-deceased daughter, in case of their death, that is to say a son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a predeceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son, are also now included in Schedule to Hindu Succession Act, 1956 as Class I heirs. The said heirs, not being coparceners, would not have right to demand partition. Any disposition, alienation, partition or testamentary disposition of property made before 20th December, 2004 shall not be invalidated by reason of the amendment of Section 6.
However, the right of the mother or deceased’s widow in the joint family property has remained unchanged. They would be entitled to an equal share with other Class I heirs only from the separate share of the father and her husband respectively computed at the time of the notional partition. With the amendment Section 6, the actual share of the mother will go down with daughters also becoming coparceners in the joint family property.
According to the amended Section 6 of the Hindu Succession (Amendment) Act, 2005 if a Hindu dies after the commencement of the Amendment Act, his interest in the property of the joint Hindu family governed by the Mithakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place.
The basic object of the amendment to the Section 6 of the Hindu Succession Act was to achieve equal inheritance for all. Daughter of a coparcener in a Hindu joint family governed by Mitakshara Law now is coparcener by birth in her own right in the same manner as a son; she has right of claim by survivorship and has same liabilities and disabilities as a son; now coparcenary property to be divided and allotted in equal share. But these laws cannot be successful unless and until there is social awareness amongst the women about their rights. Women themselves relinquish their rights and tend to suffer deprivation. The change which took about 49 years to bring daughters at par with the sons with respect to their right in their ancestral property cannot be lost sight of just because of ignorance of people. The judiciary should also make efforts to implement the law so as to achieve the objective behind the amendment of the law. Above all it’s the woman herself who has to be aware of and assert her rights.