The
Constitution of India provides that every person is entitled for Equality
before Law and Equal Protection of Laws and there by prohibits discrimination
on the basis of Caste, Creed and Sex. The discrimination on the basis of Sex is
permissible only as protective measures to the female citizens as there is need
to empower women who have suffered gender discrimination for centuries. Now so
far as property is concerned, the daughter shall be given every right to
inherit immovable and movable property equal to that of male members. We will
examine how far this right to property of daughter has been recognized in the
laws relating to Hindus.
Rights of women in Co-parcenary property:
Prior to,
Hindu Women’s Right to Properties Act 1937 the woman was totally excluded from
taking share in the Joint Family Property. The succession to the property of
male member was governed by rule of survivorship. The rule of survivorship
means on the death of a member of joint and undivided family his share in the
joint family property passes to the surviving male members called as
coparceners. Mulla defines coparceners as ‘The three generations next to the
holder in unbroken male descent.” If a man has sons, grandsons and
great-grandsons living, all of these constitute a single coparcenaries with
him. Coparceners jointly inherit property and have unity of possession. The
co-heirs and their heirs are also called coparceners so long unity of
possession continues. Co-parcenary is different from joint family. Co-parcenary
is limited to three generations next to holder; the joint family has no such
limitation. It includes all the generations of the holder. To understand the
position of Hindu daughter in the law of succession, it is worthwhile to know
important features of Co-parcenary property. There are two different laws
followed by Hindus in respect of property. Mithakshara is widely followed in India , except in West Bengal; Dayabhaga is followed
in West Bengal .
Co-parcenary
property:
- Unity
of ownership
that is the ownership of property is vested in the whole body of the
co-parceners.
- In
determinability of shares i.e. the interest of a Coparcener member in
the property is a fluctuating interest capable of being enlarged by deaths
in the family and liable to be diminished by births in the family.
- Community
of interest
i.e. no co-parcener is entitled to any special interest in the
co-parcenary property nor is he entitled to exclusive possession of any
part of the property. His right is that of an undivided interest.
- Exclusion
of females
i.e. females are excluded from inheriting co-parcenary property though
wife was entitled to maintenance out of her husbands property.
- Rights
by birth,
co-parcenary members acquire interest in the property by birth.
- Devolution
of survivorship,
one of the interesting features of Mithakshara Co-parcenary is that on the
death of a Co-parcener his interest in the property passes by survivorship
(the members who are alive) to other Co-parceners. In Dayabhaga, the
property devolves on the death of the holder. Nobody inherits any interest
by birth.
However
Women’s Right to Properties Act:
However the Hindu women’s right
To Properties Act 1937 gave a death blow to the doctrine of survivorship,
because under this act the widow of a deceased co-parcener in a Mitakshara
undivided family will have in the joint family property the same interest which
her husband had while he was alive. It
may be noted that the widow has right to claim a partition as a male owner even
if there is male issues, but the widow was not in a position to hold the
property as absolute owner. Only with
the passing of the Hindu Succession Act the position of widow and daughter came
to be improved. Before going further
into the Act of 1956 it is worthwhile to examine the concept of coparcenary
property. Generally speaking coparcenary
property is one in which all the coparceners have community of interest and
joint possession. Such property consists
of
- Ancestral
property.
- Property
jointly acquired by the members of the joint family
- Separate
property of a member ‘” thrown into the common stock” with the intention
of abandoning all separate claims on it, which becomes the property of
joint family.
- Property
acquired by all or any of the coparceners with the aid of joint family
funds.
Ancestral Property:
Ancestral
property means that property which descends from father, father’s father or
father’s father. The Privy Council has
held that the ancestral property is confined to property inherited from the
three immediate paternal ancestors and the property inherited from a maternal
grandfather is the absolute property of the inheritor in which his son does not
acquire any interest by birth, and that it is not ancestral.
Hindu
Succession Act 1956:
For the purpose of succession to
property by Hindu daughter the Hindu succession Act, divides the property into
four categories they are,
- Coparcenary
property,
- Property
of male Hindu,
- Property
of female Hindu and
- Dwelling
house.
The provision relating to
Co-parcenary property in the Hindu succession Act 1956 is Sec.6 which provides
that if a male Hindu dies leaving behind his share in Mithakshara Co-parcenary
property, such property will pass on to his sons, son’s, son’s son by
survivorship, on surviving members. In
case there are female relatives like daughter, Widow, mother, daughter of
pre-deceased son daughter of predeceased daughter widow of pre-deceased son,
widow of pre-deceased son of a predeceased son, then the interest of the
deceased co-parcenary will pass on to his heirs by succession and not by
survivorship.
Example: If ‘c’ dies leaving behind his two sons only,
and no female heirs of class I then property of ‘C’ passes to his sons by
survivorship since there are no female relatives like daughter or any other
member specified in the class I of first schedule. In case ‘C’ dies leaving behind two sons and
three daughters, then property of ‘C’ will pass on to his sons and daughters by
succession in the following manner.
Firstly property of ‘C’ is
divided among ‘C’ and his two sons. The
shares of ‘C’ and his two sons are C –1/3, each son 1/3 .
The sons are entitled to the
equal share of the property along with the father. But the daughters are entitled
to the share in the share of the deceased “C” along with other sons. So the
sons will get 1/3 of the property and a share, which is 1/5 in the share of
deceased “C”.
Son 1 – 1/3+1/15
Son 2 – 1/3+1/15
Daughter 1 – 1/15
Daughter 2 – 1/15
Daughter 3 – 1/15
Even under the Hindu Succession
Act the daughter does not take equal share with the son. In this regard Karnataka State Karnataka
State
Succession to the property of male
Hindu
(self
acquired property) (sec 8 to 10)
The nature of the property held
by male Hindu U/S 8, is self acquired property. So far as self-acquired
property is concerned the owner of such property can dispose of by sale, Will,
or gift without any restrictions. In case the owner dies without disposing the
property then other members get right to inherit the property by succession.
After the death of owner of the self-acquired property, widow, or widows will
take one share. To be more clear all the widows, if the deceased had more than
one wife, together take one share only, as though only one wife. The surviving
sons and daughters and the mother shall each take one share. In the case of
self acquired property the daughter takes share equal to that of son unlike in
coparcenary property.
Succession
to the property of female Hindu
(sec
14,15,16)
For the first time in the Indian
History U/S 14 of the Hindu Succession Act 1956, female Hindu is given absolute
ownership over the property acquired by Will, sale or by any other lawful
means, So far as succession to property of female Hindu is concerned the
daughter, son, and the husband takes equal share by succession, which means
while she is living no member can demand partition of the property. She can
dispose the property either by will or by sale, if she dies without disposing
the property then members gets right to inherit the property by succession.
Section 15 of the Hindu Succession Act deals with the devolution of the
property owned by Hindu female.
If the
Hindu female has inherited any property form her father or mother, such
property devolves upon the heirs of her father, if there are no legal heirs
which are specified in section 15, like son, daughter, children of predeceased
son or daughter. Likewise if the Hindu female has inherited any property from
her husband or father in law, such property will devolve on the heirs of her
husband if there no legal heirs like son, daughter, children of predeceased son
or daughter.
Dwelling House:
But in
case of dwelling house, the daughter U/S 23 of the Hindu Succession Act 1956,
cannot claim any share by partition until male members choose to divide the
share in the dwelling house. In case the daughter is unmarried, she is entitled
to a right of residence there in.
The
daughter may loose her right to share in the property in any of the following
circumstances:
Sec (26)
– if daughter ceases to be a Hindu by converting to another religion.
Sec (25)
– if daughter commits murder or abets the commission of murder of a person
whose property she could have inherited.
However
she will not be disqualified to inherit the property only by reason of any
disease, defect or deformity.
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