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 survivorship . As per the rule of survivorship , 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.
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 possession.
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 the Hindu Succession (Amendment) Act, 2005 came into force.
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 includes 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 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 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 the Act which disentitled 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
The significant change that was brought by the Amendment Act was to make daughters coparceners in the 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 acquired 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 the deceased male coparcener, she shall inherit his entire property of which she would become the 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 the 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 in 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 a 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.
#Women #Coparcener #Rights #Property
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