In Hindu society, the issue
of inheritance and property rights has long been a subject of debate and legal
discourse, as, in the beginning, the daughter had not been given any coparcenary
right or right to claim her share in ancestral property. On the other hand, male
heirs have been given preferential treatment, leaving female heirs, including
daughters, at a disadvantage.
However, with the
progression of time, the changes in socio-cultural practices, the increase in
literacy level, and as a result of all these, the development of legal
frameworks, the rights of Hindu daughters in ancestral property have been acknowledged
and protected to a certain extent. This article aims to assess the rights and
remedies available to Hindu daughters in obtaining their rightful share in
ancestral property even after partition, through relevant case laws that have
shaped the legal landscape.
Meaning
and Characteristics of Ancestral Property
The ancestral property holds
significant importance, especially in Hindu legal systems. It refers to the property
that is inherited through successive generations within a family, typically
from father to son (or grand-son), and is governed by specific rules and laws.
Understanding the meaning and characteristics of ancestral property is
essential to determine the rights and claims associated with it.
I.
Meaning of Ancestral Property
In Hindu Personal Law, ancestral
property refers to property that has been inherited through a line of male
descendants from a common ancestor. The property includes both movable (such as
land, buildings, houses, agricultural holdings, ancestral businesses, etc.) and
immovable assets (such as cash, bank deposits, vehicles, investments, jewelry,
etc.) that have been passed down from one generation to the next generation.
II.
Characteristics of Ancestral Property
Its major characteristics
include:
1.
Inherited through Lineal Descendants: Ancestral property is acquired
through successive generations of lineal descendants within a family. It is
typically passed from the father to his sons and further to their male
descendants. Because of recent developments and subsequent legislation, this
right has also been given to the daughters (in ancestral property).
2.
Common Ownership:
Ancestral property is jointly owned by all the members of the joint family.
Each coparcener, including male and (now) female lineal descendants, has an
undivided interest in the property by birthright. The ownership rights are not
based on individual contributions but are derived from the family's common
ancestry.
3.
Right of Survivorship:
An important characteristic of ancestral property is the right of survivorship.
When a coparcener passes away, his share in the property devolves upon the
surviving coparceners by operation of law. This ensures the continuity of joint
family ownership and prevents fragmentation of the property.
4.
Impartible and Inalienable:
Ancestral property is generally impartible, meaning it cannot be divided or
partitioned among a few coparceners, which means, it can be partitioned with
the consent of all coparceners. Likewise, it remains undivided until a legal
partition is sought or occurs due to specific circumstances.
5.
HUF Property:
Ancestral property is often associated with the Hindu Undivided Family (HUF).
The HUF is considered a separate legal entity and holds ancestral property on
behalf of all coparceners. The management and control of the property are
vested in the head of the family or the karta.
6. Succession Rules: Ancestral property is governed by specific succession rules, primarily based on Hindu law and relevant legal provisions (i.e. Hindu Succession Act, 1956, Hindu Succession (Amendment) Act, 2005, and other such rules. The rules determine the order of succession and the rights of coparceners, including daughters, as per the prevailing legal framework.
7.
Right to Partition:
Coparceners have the right to seek a partition of ancestral property to obtain
their share separately. Partition can be initiated through mutual agreement,
family settlement, or legal proceedings in court.
Understanding
the Concept of Partitioned Ancestral Property
The concept of partitioned
ancestral property refers to the division or separation of ancestral property
among the coparceners (joint owners) of a Hindu Undivided Family (HUF). The partition can occur voluntarily through a mutual agreement among the family
members or can be enforced through legal proceedings. When the ancestral property
is partitioned, each coparcener receives a specific share in the property,
thereby converting it into individual or separate ownership.
Following are some of the key
aspects that help in understanding the concept of partitioned ancestral
property:
1.
Division of Ownership:
Partition results in the division of joint ownership of ancestral property into
individual ownership. Each coparcener receives a defined and equal portion or
share of the property (until and unless such right is left with free will or
has taken his/her share much before the partition or any such reason), which
becomes their exclusive ownership.
2.
Right to Demand Partition:
Coparceners have the legal right to demand partition and seek their share in
ancestral property. This right is available to all coparceners, including sons,
daughters, and other male lineal descendants. The right to partition can be
exercised (anytime); however, especially when coparceners wish to separate
their interests and have independent control over their respective shares.
3. Equal Distribution: In a partition, unless there is a specific agreement or arrangement among the coparceners, the property is categorically divided equally among them. Each coparcener is entitled to a fair and proportionate share based on the size and value of the property.
4.
Physical and Legal Partition: Partition can take two forms: physical partition and
legal partition. Physical partition refers to the physical division of the property
into separate portions; that usually, people in India practice. While legal
partition involves the allocation of specific shares to each coparcener through
proper documentation and respective procedures. However, the legal partition is
essentially required for further claims, partition, sale, etc. The law does not
validate the physical partition, which has been done verbally.
5.
Rights and Liabilities:
Upon partition, each coparcener becomes the absolute owner of their share of
the property and has the right to manage, possess, and dispose of it as per
their discretion. They also become solely responsible for any liabilities or
obligations associated with their respective shares.
6.
Effect on Joint Family Status: Partition brings an end to the joint family status and
the concept of joint ownership. Once partitioned, the property ceases to be
ancestral property, and the coparceners become independent owners of their
respective shares. However, if such property comes through succession, then it
does not lose the characteristics of ancestral property, as it is still
considered as ancestral property in the hands of its (new) owner.
7.
Legal Procedure:
Partition can be initiated through mutual consent or through legal proceedings
if there is a disagreement among the coparceners. Legal partition typically
involves filing a partition suit in court, presenting evidence, and obtaining a
decree from the court to effectuate the division of the property.
Difference Between Self-Acquired Property and Ancestral Property
The following table
highlights the major differences between Self-Acquired Property and Ancestral
Property:
|
Basis |
Self-Acquired Property |
Ancestral Property |
|
Meaning |
It belongs to owner and owner has an
exclusive right on the property. In other words, owner is sole authority. |
Owner is sole authority until he is
bachelor; as he becomes father, he becomes one of the shareholders of that
property and hence, his rights by default shrinks and limited to the interest
of that property. |
|
Feasibility |
Male and female, both can acquire and can be owner
of such property. Any type of property of a woman is personal or
self-acquired property. |
Concept of ancestral property is applicable only in
case of Male. No female’s property can be categorized as ancestral property,
irrespective of the source, it came through. |
|
Ownership |
It refers to the property that an
individual acquires by their own efforts, such as through purchase,
inheritance, partition, gift, or any other means. The individual has
exclusive ownership rights over the property. |
It is the property that is inherited from
one's ancestors, up to four generations above the individual in question. It
is passed down through the male lineage and is jointly owned by all the
coparceners of the Hindu Undivided Family (HUF). |
|
Source of Acquisition |
It is acquired by an individual through their own
endeavors and resources. It can be acquired through personal earnings,
investments, partition (of HUF property) inheritance from non-ancestral sources,
or any other lawful means. |
It is obtained by birthright, as it passes down
from one generation to another within a family. It is the property that has
been inherited from one's ancestors and is considered the joint property of all
the coparceners of the HUF. |
|
Inheritance & Succession |
In the case of self-acquired property,
the individual has the right to decide the manner of its disposition upon
their death. They can make a will or execute any other legally recognized
document to determine the distribution of their self-acquired property among
their heirs. |
It follows the principle of succession
by birthright and coparcenary rights. On the death of a coparcener, their
share in the ancestral property devolves upon the other surviving coparceners
in the family. The property does not pass according to a will but through the
operation of law (succession). |
|
Partition & Rights |
The owner of self-acquired property has the
absolute right to manage, possess, transfer, or dispose of the property as
per their will and wishes. They can distribute the property among their legal
heirs as they see fit, and the heirs have no inherent right to claim a share
in the property during the owner's lifetime. |
Coparceners of an HUF have a right by birth in the
ancestral property. They can demand partition and receive a share in the
property. Ancestral property can be physically partitioned, resulting in each
coparcener having separate ownership over their portion of the property. |
|
Mitakshara & Dayabhaga Schools |
Ancestral property is governed by the
Mitakshara and Dayabhaga schools of Hindu law. The Mitakshara school
recognizes the concept of coparcenary and joint ownership, while the
Dayabhaga school follows a different approach where the property is treated
as separate and not jointly owned. |
|
Key Legislations and Amendments Protecting the Rights of Hindu Daughters
Following are the important
legislations and amendments the ensure the rights of a Hindu daughter in her
ancestral property:
1.
Hindu Succession (Amendment) Act, 2005: The Amendment Act of 2005, was a
significant legislation that brought about substantial changes in the rights of
Hindu daughters. It includes:
a. Mitakshara
Coparcenary:
The amendment in 2005 to Section 6 of the Hindu Succession Act removed the
gender-based discrimination in coparcenary rights. It granted equal rights to
daughters in the ancestral property by birth. Daughters are now considered
coparceners and have the same rights and liabilities as sons. It also ensured
that a daughter (if eldest) can also be a ‘karta.’ Earlier, this right was only
with the eldest son.
b. Right
to Partition:
Daughters have the right to seek partition of the ancestral property and claim
their share. They can initiate legal proceedings to divide the property and
obtain their rightful portion anytime, which means whether she is married or
unmarried does not make difference. Likewise, a married or unmarried both can
initiate legal proceedings.
2.
Amendments to the Hindu Marriage Act, 1955: Amendments made to the Hindu
Marriage Act address issues related to divorce, maintenance, and property
rights of women, including daughters. These amendments ensure fair treatment
and protect the rights of daughters in marital relationships.
3.
The Hindu Adoption and Maintenance Act, 1956: This act deals with adoption and
maintenance rights of daughters. It ensures that daughters have equal rights as
sons in matters of adoption and maintenance from their parents. Daughters can
also adopt a child under certain conditions.
4. Protection of Women from Domestic Violence Act, 2005: This act provides protection to women, including daughters, from domestic violence. It recognizes various forms of abuse and grants legal remedies and protection to victims.
Landmark Cases Ensuring the Rights of Hindu Daughters in Ancestral Property
Following are some landmark
cases that further confirmed and protect the rights of Hindu Daughters in their
ancestral property:
1. Prakash & Ors. vs.
Phulavati & Ors.:
In 2016, Supreme Court clarified that the amendment to Section 6 of the Hindu
Succession Act, 1956, granting equal coparcenary rights to daughters, is
applicable even to cases where the father died before the amendment. The court
held that the rights of daughters are not affected by the date of their
father's death.
2.
Danamma @ Suman Surpur vs. Amar: In 2018, the Supreme
Court held that the amended Section 6 of the Hindu Succession Act, 1956,
granting equal coparcenary rights to daughters, applies retrospectively. The
court ruled that daughters have an equal right in the ancestral property,
irrespective of whether the father was alive or not at the time of the
amendment.
3.
Vineeta Sharma vs. Rakesh Sharma: In 2020, the Supreme
Court (with its a Three-Judges Bench comprising of Arun Mishra, M. R. Shah and
S. Abdul Nazeer) reaffirmed the equal coparcenary rights of daughters in
ancestral property. The court clarified that the rights of daughters are by
birth and not impacted by their date of birth or whether they were born before
or after the amendment to the Hindu Succession Act, 1956 and even if the father
was not alive on 9-9-2005. Daughters have the same rights and liabilities as
sons in coparcenary property.
Likewise, these landmark
cases have played a decisive role in establishing and reinforcing the rights of
Hindu daughters in ancestral property. They have clarified the retroactive
application of the amendment to the Hindu Succession Act, ensuring equal
coparcenary rights for daughters and securing their entitlement to a share in
ancestral property. These judgments have set significant precedents and
provided legal protection to Hindu daughters seeking their rightful
inheritance.
|
Exception |
However, in a condition, when the property is
already partitioned or testamentary disposition had taken place before 20th
December, 2004, the respective daughter cannot claim her rights in such
property. |
Remedies Available to Hindu Daughters Even After Partition of the Ancestral Property
Prima facie, the respective
claimant (a Hindu daughter) needs to verify that the respective ancestral
property is not partitioned, sold, or even gifted legally before 20th
December, 2004, as in this case, she won’t have any right to claim; however, if
it is not the case then, she has the following remedies that she can avail even
after partition of the ancestral property:
1.
Seeking (Re)Partition:
If the ancestral property has been partitioned and the Hindu daughter did not
receive her rightful share, she can still claim her share in the partitioned
property.
2.
Right to File a Lawsuit:
If father or/and brother/s do not agree in doing so, then she can file a
lawsuit seeking her rightful share in the partitioned ancestral property. She
can approach the civil court to claim her rights and request a division of the
property as per their entitlement.
3.
Injunctive Relief:
Further, a Hindu daughter can also pray for injunctive relief from the court to
prevent any further disposal or encumbrance of the ancestral property until
their rights are determined. This ensures that the property remains intact and
available for division among the rightful heirs.
Likewise, a Hindu daughter
has the right to challenge any illegal transactions or dispositions of
ancestral property made by other family members. If any fraudulent partition, transfers,
or sales of the ancestral property have taken place to exclude the daughter
from her rightful share, she can initiate legal proceedings to set aside such transactions.
Conclusion
The legal landscape
regarding the rights of Hindu daughters in obtaining their share in partitioned
ancestral property has witnessed significant progress. Through various legal
reforms and landmark judgments, the rights of Hindu daughters as coparceners
have been acknowledged and protected. However, societal and cultural challenges
continue to impede the full implementation of these rights. It is crucial for
stakeholders, including legal professionals and society as a whole, to actively
promote awareness and empower Hindu daughters to assert their rightful share in
ancestral property as well as in partitioned ancestral property (in case, if it
is portioned without the knowledge of the daughter). By upholding equality and
non-discrimination, the path toward a more just and inclusive society can be
paved for future generations.
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