Property rights of a daughter under Hindu Succession Act 2005


Property rights of a Hindu woman can be divided into two distinct time phases—before and after 2005. This guide will help you understand what the property rights of a Hindu daughter were before 2005 and after this year.

 

See also: All about ancestral property

 

Property rights of a daughter before 2005

The Hindu Succession Act, which is applicable to Hindus, Jains, Sikhs and Buddhists, recognises the concept of HUF—a family of people, lineally descended from a common ancestor and related with one another other by birth or marriage. These family members are further categorised as:

Members, and

Coparceners  

While the law recognised the men in the family as coparceners, the same stature was not given to daughters born in the family — all the daughters in the family were only Members of an HUF and not coparceners, before 2005.

 

Who was a coparcener under Hindu law 1956?

Under the Hindu succession law, the term coparcener denotes a person, who assumes a legal right in his ancestral property by her birth in an HUF. According to the Hindu Succession Act, 1956, any individual born in an HUF becomes a coparcener by birth.

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 no longer be entitled to the right of maintenance or a share in HUF property, if the property were partitioned. As only a coparcener was entitled to become the Karta of the HUF, daughters were not entitled to become a Karta of the HUF and manage its affairs. 

See also: What is a coparcener and the role of Karta in a Hindu Undivided family

 

 

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. With this amendment, daughters were 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.

The amendment came into effect on September 9, 2005.

However, only daughters born in the family got the coparcenary rights. Women, who come into the family by virtue of marriage are still treated as members only. Consequently, they are not entitled to ask for property partition. They are, nonetheless, entitled to maintenance and shares as and when partition takes place.

See also: Probate of a will: All about probate meaning, uses and how to apply for it

 

Married daughter’s rights 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. So, she is entitled to ask for partition of the HUF property and 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 are 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.

However, a daughter cannot gift her share in the HUF property while she is alive but she can give away her share in an HUF property by way of a will. If she dies without leaving a will, her share in the joint property will not devolve on other members of the HUF but pass on to her legal heirs.

 

See also: Know all about wife share in husband property after death

 

Can a daughter ask for partition of her ancestral property?

Daughters have the authority to ask for partition of property among family members and sale of their ancestral properties as much as sons.

See also: How to become co-owner of property?

 

Latest judgements

 

Family property received by Hindu woman through partition deed is not inheritance: HC

 

An ancestral property received by a Hindu woman through a registered partition deed will not qualify cannot be termed inheritance under the Hindu Succession Act, the Karnataka High Court has ruled. Consequently, such a property will not go back to the heirs of the woman’s father upon her demise, the HC added.

 

Read full coverage here

Daughters don’t lose right in parent’s property because they got dowry: HC

The right of daughters in their paternal property does not get extinguished because a dowry was given at the time of their wedding, the Goa Bench of the Bombay High Court has ruled.

“Even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father’s demise,” the Bench said while giving its order in case where a brother has made a transfer deed without getting consent of his sister.

Hindu widow’s parental-side kin can inherit her property, rules SC

February 25, 2021:  Family members on the parental side of a Hindu widow cannot be held to be ‘strangers’ and her property can devolve upon them under the Hindu Succession Act, the Supreme Court has ruled.  The top court clarified that the heirs of the father of a Hindu woman are covered under persons entitled to succession of property.

Upholding the order of the high court and the trial court, which allowed a childless widow to enter into a family settlement to transfer her property to her brother’s son, the SC said: “A perusal of Section 15 of the Hindu Succession Act, indicates that heirs of the father are covered in the heirs (of the property), who could succeed. When the heirs of the father of a female are included as person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.”

See also: All about property rights of a wife and her children in a second marriage

 

Hindu Succession Act 2005 applies retrospectively: SC

August 11, 2020: In a landmark judgement, on August 11, 2020, the Supreme Court has held that daughters will have coparcenary rights on their father’s property, even if the latter died before the Hindu Succession (Amendment) Act, 2005, became effective. The SC’s observation came, while clearing the air on conflicting decisions given by courts in India in the past.

The top court in August 2020 further extended the scope of the 2005 law, to cases where the father was not alive on the date when the Act was introduced. In effect, the SC order by a three-judge bench, makes the 2005 amendment retrospective.

“The provisions contained in substituted Section 6 of the Hindu Succession Act, confer status of coparcener (equal shareholders while inheriting properties) on the daughter born before or after the amendment, in the same manner as sons, with same rights and liabilities. Since the right in coparcenary is by birth, it is not necessary that the father of the coparcener should be living as on September 9, 2005 (the date when the law came into force),” the bench ruled.

The top court, however, said that a registered settlement or partition suit decreed prior to December 20, 2004 will not be reopened, in a move to stop reopening of earlier settlements.

 See also: Know all about property transfer after death of owner

 

FAQs

Can a married daughter claim father’s property?

A married woman will not be a member of her parental HUF post her marriage, but will continue to be a coparcener. She can ask for partition of the HUF property.

What does the term ‘coparcener’ mean?

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. With the amendment of the HSA, even women of the family can also be a coparcener.

Can self-acquired property be a coparcenary property?

Yes, self-acquired property can be a coparcenary property.

 

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Mike McNamara

Mike McNamara

A Las Vegas Realtor since 2008. Mike has a wide range of knowledge around all things Las Vegas.

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