Introduction to Hindu Succession Act, 1956
It is common knowledge that we are living in a predominantly patriarchal society and giving daughters the right to succession to family property is a new and recent concept. The Hindu Succession Act, 1956 govern the devolution of property under Hindu law. When a person dies intestate, i.e. without a will, the property is distributed among the legal heirs as per the provisions of this Act. Earlier, daughters did not have the right to succession to the ancestral property post their marriage. But an amendment was made in 2005, which entitled daughters to an equal share in their ancestral property.
Concept of Coparcenary
A distinct concept that exists under Hindu law is called the Hindi Undivided Family (HUF). HUF is considered a separate legal entity and consists of lineal descendants of a common ancestor including their wives and daughters. A concept that exists within HUF is that of the coparcenary. It is a narrower concept and includes only the lineal descendants who are within four generations of a common ancestor, and such persons acquire an equal interest in the HUF property directly at birth. Coparcenary has unity of ownership and interest; therefore, each coparcener has the right to joint possession and enjoyment of the property.
Coparcenary cannot commence without a common male ancestor but can continue without him. It has the spiritual aspect and in relation to the father is a person who can perform the funeral and other ceremonial duties after death. This process of offering spiritual salvation, from the beginning of time, was available to son, grandson, and great-grandson and as a consequence of it, they had a right by birth in the property of the father.
Succession rights of Daughter before 2005
Succession rights of a daughter were mainly governed by the customary laws which varied from region to region before the enactment of Hindu Succession Act. Before the 2005 amendment, the law considered a daughter only as a member of the Hindu Undivided Family, not a coparcener. However, that also ended once she got married. Daughters had the right of maintenance from HUF property and also the right to get a share in the property as and when partition took place. Upon marriage, she ceased to be a member of the HUF of the father and was thus, no longer entitled to the right of maintenance or to get a share in the HUF property, if it partitioned after her marriage.
Succession rights of Daughter after 2005
After the 2005 amendment, a daughter has been recognized as a coparcener by birth, and her marital status makes no difference to her right over the father’s property. The amendment also includes daughters who were born before the Hindu Succession Act, 1956 came into force. This amendment now bestows upon the daughter the status of coparcener as of right in the same manner as the son and gives the same rights and liabilities in the coparcener properties. A daughter will continue to be a coparcener post her marriage. Thus, being a coparcener, she is entitled to ask for partition of the HUF property if she desires. Even children of a pre-deceased daughter can claim a share in HUF property to the extent of their mother’s share. In case none of her children is alive on the day of partition, the grandchildren of the daughter will be entitled to the shares that the daughter would have received if partition took place.
It is important to note that the provisions of the 2005 amendment of the Hindu Succession Act apply only to intestate succession, i.e. succession without the will and not to the inheritance of personal assets through testamentary instruments, i.e. a Will or Codicil. Persons wanting to bequeath their assets to specific persons should do so by way of a professionally drafted Will, which clearly lays out the manner of a bequest to the person or persons specified.
In practice today, most daughters do not claim a share in their ancestral property and give it up as a favor to their brothers, with or without compensation. Society and family act as a driving force in women’s decisions, which is unlikely to change across India anytime soon. Awareness or knowledge about the need for personal wealth and succession planning is required to make daughters aware of their rights. The 2005 amendment is an important landmark in the succession rights of daughters.
It does not matter if the daughter was born before or after 2005 when the amendment to the existing law was carried out; she will have the same rights as a son to the father’s property, be it ancestral or self-acquired. However, only the daughters get the coparcenary rights by virtue of being born in the family. Other female members, who come into the family by virtue of marriage, are still treated as members of HUF only. The amendment of 2005 took place because women were discriminated for a long time for the sake of old traditions. There is an immediate need for equal succession rights of daughters and sons.