Way before the Hindu Succession Act 1956 was amended, the property rights of sons and daughters were quite different. At that time, sons had an absolute right over the father's property, and daughters enjoyed this right only if they got married but with further specific clauses.
Property rights of daughters before 2005
The Hindu Property Act recognizes the concept of HUF (Hindu Undivided Family), which means more than one person, all lineal descendants of a common ancestor and related to each other by birth or marriage. There are two categories of people who are descended from common ancestors-
The first category is only for coparceners. Only males of the family were recognized as coparceners of the HUF, and females were addressed as members.
All the coparceners are members, but not all members are coparceners.
Who was the coparcener under the Hindu Law 1956?
Under the Hindu Succession Law, a coparcener is a person who assumes a legal right to his ancestral property by birth in a Hindu Undivided Family. So any individual born in a HUF becomes a coparcener by birth. But the rights of coparceners and members in the property were different. The coparceners had the right to ask for a partition of the property. At the same time, members of the HUF had the right to the maintenance of HUF property and adherence to the share.
After marriage, daughters would cease to be a member of HUF but no longer be entitled to the right of maintenance or the share in the property.
Female members after marriage could not be the Karta nor could manage its affairs, while only a coparcener was entitled to be the Karta of HUF.
Property rights of a daughter after 2005
Under the Hindu Succession Act 1956, Section 6 deals with the coparcener's right in the HUF property, amended in 2005. After this amendment, the property rights of a daughter were equal to a son. The rights of a daughter got attached with the coparcener by including the right to ask for partition of the property and become the Karta of the HUF.
However, only daughters in a family will get the coparcenary rights. In contrast, the female members who came into the family by marrying sons of the family will be treated as the members only. Therefore, they will not be entitled to demand a partition but will be only entitled to the maintenance and shares whenever the partition decides to take place.
Property rights of a daughter after marriage under the Hindu Succession Amendment Act 2005
A daughter will cease to be a member of her parental HUF after her marriage and will continue to be a coparcener. It makes her eligible to ask for partition of the HUF property and is entitled to become Karta of the HUF if in case the daughter is the eldest coparcener of her father's HUF.
In case the daughter dies after marriage, her children are also entitled to the shares of her property that she would receive when alive.
If no children of the mother are alive, her grandchildren are entitled to the shares that were reserved for her to acquire.
However, the daughter is not entitled to transfer or gift her share in the HUF property if she is alive. But a daughter is capable of giving away her share in the HUF property by way of a will. In case the will is not prepared and she passes away, her share in the joint property will not devolve to any other member but will be transferred to her legal heirs.
No more oral partition to be accepted
Before the amendment in 2005, a partition done orally was permissible with evidence of a person who claims was present at the time of verbal division. But the amended Section 6 of the Hindu Succession Act 2005 states that the 'partition' can be affected by any registered deed.
However, the court later argued that the need for a registered partition deed was not necessary. Regardless of this, the court noted that section 6 would ensure property rights of a daughter should be safe and applicable. It ensures that daughters are not deprived of receiving their share of becoming a coparcener.
The court kept in mind the possibility of oral partitioning a setup or collaboration. Thus, such oral partition is not recognized under section (5). Legally no oral partition can be accepted. However, it may be accepted in an exceptional case where public documents support it.
Statutory fiction of partition
Before section 6 was amended, there was 'statutory fiction of partition', a complex mechanism used to ascertain the rights of a man's surviving family members. If a man dies, leaving behind a female relative, then in such a case, the law states that the property share had to be calculated by imagining that a partition took place just after the man's passing. The intention behind this was that women would not be granted a share in the coparcenary property, although they were entitled to share of the interest of the deal coparcener.
But now the court has stated that "statutory fiction of partition' will not bring an actual partition despite the fact that statutory fiction of partition has taken place earlier, but after the amendment, the new provision will have to be implemented in case of any pending proceedings or appeal.
Also read: Rights and Duties of Homebuyers under RERA