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Firming up Hindu woman’s property rights

The Hindu women's right to their parental property has been an extremely contested issue.

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Flavia Agnes 
Women's rights lawyer

The Hindu women's right to their parental property has been an extremely contested issue. During the debate on the Hindu Code Bill in the 1950s, due to much opposition from leaders of various political parties, Hindu women were not given equal rights in the ancestral property. Their rights were limited to the self-acquired property of their father.  Even this right was illusory as the father could make a will and deprive his daughters. The Hindu women acquired equal rights in the ancestral property in 2005, after a sustained campaign of 50 more years.

Despite this, the right continued to be illusory as several high courts denied women an equal share in the ancestral property as the concept that upon marriage a daughter loses her rights in her natal home continued to prevail in both society and courts. It is for this reason that we must hail and popularise the judgement of Justices AK Sikhri and Ashok Bhushan pronounced on February 1, 2018 in Danamma vs Amar [2018 (1) SCALE 657] as it has secured the Hindu woman's right to ancestral property in clear and unambiguous terms and laid down that her rights remain intact, irrespective of her marital status. 

This judgement did not get the publicity it deserved at that time. Yet, as we take stock of the pro-women judgements during the year, we need to go back and deliberate upon it in detail, to dispel the misconceptions which prevail which hinder the woman from claiming her due share in the family property.  

Agreed, it is not very easy for a married woman, or for that matter any woman, to claim her rights from her natal family and the court battle may go on for years. Yet, unless some women embark on this hazardous journey, the hard-won right will continue to remain illusory and misconceptions will continue to prevail. 

The 2005 Amendment Act

The judgement clarified that the 2005 Amendment Act is applicable to the daughters of Hindu coparceners (joint property holders) on the date on which the Act came into force. From that date, all Hindu daughters have become coparceners along with their brothers, even if they were born prior to the Amendment and hence they cannot be denied their right.  

The two issues raised in the litigation

  • Whether the daughters can be denied their share in their father's property merely on the ground that they were born prior to the enactment of the Hindu Succession Act, 1956 (which awarded rights to a daughter for the first time)?
  • Whether, with the passing of the Hindu Succession (Amendment) Act, 2005, the daughters became coparcener "by birth" in their "own right in the same manner as the son" and are, therefore, entitled to equal share as that of a son?

The issue, whether the right to inherit property is limited to daughters born after September 9, 2005 when the Amendment Act came into force had already been decided by the Supreme Court in Prakash vs Phulavati [(2016) 2 SCC 36], wherein it was held that the rights under the Amendment are applicable to living daughters of living coparceners as on September 9, 2005, irrespective of when such daughters are born. However, if the property had already been partitioned before December 20, 2004, it will remain unaffected and the issue of redistributing the property as per the Amended Act does not arise, since the Act is prospective and not retrospective. 

In the judgement, the court commented that the law relating to the HUF property has undergone unprecedented changes in response to the growing demand by women to an equal share in the family property. The changes were made on the touchstone of equality, to remove the perceived disability and prejudice to which a daughter was subjected.

The court clarified that it is the factum of birth in a coparcenary that creates the right. Therefore, daughters living on the date when the Act came into force in 2005 have become coparceners by virtue of birth. The judgement further clarified that even if the coparcener had expired, if the claim of the survivors had not been settled, the court is bound to take notice of the fact that daughters have become equal sharers of the property, when deciding the matter.

The facts of the case  

A partition suit was filed by the grandson (Amar) a year after the death of the coparcener, Gurulingappa, in 2001, claiming one-fifth of the share in the property.  Gurulingappa had died leaving behind two sons (Arunkumar and Vijay) and two daughters (Danamma and Mahananda). Amar was the son of Arunkumar. He had two sisters — Sheeetal and Triveni. 

Sumitra, the wife of Guruingappa, his father Arunkumar, and Amar's sisters did not contest his claim. But the two aunts — Danamma and Mahananda — claimed their share and uncle Vijay claimed half the share of the property. 

The suit was decreed in 2007, by which time his grandmother Sumitra as well as his father Arunkumar had expired. So, the trial court awarded half the property to Vijay and the rest was given equally to Amar, his mother and his sisters. The two aunts were denied any share on the ground that they were born before the Hindu Succession Act came into force. Since at that time, daughters could not claim any share in the family property, the court held that they are not entitled to a share. 

The two aunts appealed to the Karnataka High Court which upheld the order of the lower court. The review petition filed by them was also dismissed. But with grit and determination, they approached the Supreme Court for a final verdict in their favour in 2018.

The Supreme Court held that the daughters of the coparceners became coparceners when the Amendment Act of 2005 came into force, along with the two brothers (Arunkumar and Vijay) and, hence, were entitled to one-fifth of the share (a share for their mother Sumitra and a share each for the four siblings). The share of Amar would be 1/25th. This calculation was arrived at based on the fact that he became an equal sharer along with his parents and the two sisters. 

Bias continues to prevail

It is indeed shocking that the judgement of the lower court pronounced in 2007 and the judgement of the Karnataka High Court pronounced in 2012 failed to take note of the changed situation under the Hindu Succession Act. Rather than any ambiguity in the wording of the Amended Act, it is the deep-rooted bias against women that prevails both in our society and courts that is responsible for this state of affairs. It is presumed that upon marriage, a daughter loses her right to the parental property because she is given dowry and "sent away".  

The judgement penned by Justice Sikhri relies upon a famous quote by jurist Roscoe Pound to explain the way the Hindu law has evolved over the years to remove the discrimination against daughters prevalent in the classical Hindu Law: "The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treatise, The Ideal Element in Law, that 'the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change'."

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