Daughters right to property
1) Introduction
A property could be said to be ancestral only when it was inherited by our forefathers and has remained and passed to the future generations of the family. The father needs to inherit the property from the grandfather for it to be ancestral as a gift of ancestral property within the family does not count as ancestral property. The legal position of daughters in relation to inheriting ancestral property has always been a topic of constant discussion and debate. Historically, the cultural and legal norms favor male successors, leaving the daughters with little to no rights in the family property. But in recent years, social awareness and legal framework have worked towards gender equality, challenging the traditional norms, and suggesting a more equitable distribution of ancestral property.
This article delves into the discourse of a daughters right to property, focusing on the complexities and nuances of family law. Since India is a secular country, various personal laws govern succession along with constitutional provisions.
2) Hindu Law
Ancient scriptures do not mention property that is to be given to an unmarried woman andStridhan an endowment of sorts is only available or given to married women. As time passed,Yagnavalkya Smriti, a Hindu Code only next to theManusmritiin its authority, was interpreted by different sages from the 9thand 12thcenturies, and this interpretation of SageVignaneswarabecame theMitaksharaSchool of Thought, and the interpretation of SageJimootavahanabecame theDayabhaga school of thought.[1]
The Mitakshara School of thought works on the idea of inheritance by birth. It is a dominant school of thought in north, west and south India. According to this school, women werent coparceners and hence were not entitled to ancestral property, which is only for male heirs.
A variation of this is the Dayabhaga school of thought, followed in the Bengal region. This prescribes the liberal view on the widow's rights over the husbands property and the rights of the unmarried daughter over the fathers property. It says that a widow even in an undivided family, could inherit her husbands property on his death when there is no male heir. But when the widow dies and if she has female heirs, the rights cease to exist i.e. in such case the property will pass to the nearest male heir of the widows husband.
One thing common in both schools is that neither gave women the absolute right over property i.e. they could not sell the inherited property.
The concept of stridhan has existed for as long as one can remember. It usually consists of movable property, given by the brides father, mother, or relatives as endowment at the time of marriage. During medieval times, this concept transformed into stridhan through which the rightful share of women was given to the groom and his family.
With the codification of laws, succession now started being governed by the Hindu Succession Act 1956.
According to this statute, the property of women was divided into two parts, namely stridhan and womans estate.
The provisions of this act included the property being given to male heirs and extended up to three lineages of the male. ( A coparcener is an individual who acquires a legal right over their ancestral property, simply by being born into a Hindu Undivided Family (HUF), and as per the provisions of the Hindu Succession Act of 1956, anyone born within a HUF is inherently recognized as a coparcener from birth.[2])
Post-independence, the issue of gender inequality was raised, as this act excluded daughters from inheriting property.
This act was amended, creating the Hindu Succession (amended) Act 2005. Section 6 of this act was amended whereby the daughters were now treated as co-parceners on par with sons vis-a-vis coparcenary property. Due to this amendment, the daughters also got the right to property and equal liability. Section 24 was repealed because it denied the widow the right to her husbands property upon re-marriage.
As for the property rights of a daughter, she shall enjoy an equal share of her parent's property, like her other male siblings. Moreover, a daughter is a coparcener in the ancestral property and holds the same duties as her brothers towards the concerned property and a married daughter holds the right to ask for shelter or maintenance from her parents if she is deserted, divorced, or widowed. After she becomes an adult, she has rights over any willed or gifted property or asset.[3]
Since daughters are a coparcener, the following are the property rights of a daughter in an ancestral property:[4]
Share in the HUF property by birth.
Demand partition in a HUF property
Be a Karta if she is the eldest coparcener.
Right to the succession of her share in the HUF property to her legal heirs if she dies intestate.
In the case of a self-acquired property of a father or mother, their son or daughter has no birthright over it. If the father or the mother dies intestate, the devolution of the property takes place as per the Rules of Hindu Succession Act, 1956 under which the daughter is covered as a Class I heir and has an equal right along with the son(s) and other legal heirs.[5]
3)Muslim Law
The Islamic personal law is a combination of pre-Islamic customs and rules which was introduced by the prophet.
Thus, the basis of Muslim law on inheritance includes rules laid down by the Quran and customs and usages that are prevalent.
Indian Muslims are governed by the Muslim Personal Law (Shariat) Application Act 1937 but in case of succession, in the absence of a will, succession will be followed as per the rules of Shariat, and in the presence of a will, it will be followed under the Indian Succession Act 1925 in case of immovable property in West Bengal, Mumbai or Madras only and in case of will of a Muslim married under special marriage act 1925.
In Mughal India, Muslim women got property rights either by inheritance, in lieu of Mehr, or by gift. (According to Mulla, Mehr or dower is a sum of money or property that the wife is entitled to receive from her husband on marriage. It is an obligation imposed upon the husband as a mark of respect to the wife. This acted as protection against arbitrary divorce for the wife.)
Among Muslims, inheritance can occur only after death and Muslim law does not act on right by birth. Moreover, there is no distinction between movable and immovable or corporeal and incorporeal or self-acquired and ancestral property.
There are two types of heirs- sharers and reliquaries. Sharers include husband, wife, daughter, grandparents of both sides, etc. and reliquaries are beneficiaries of residual share of property.
According to Muslim law, the property share of men is double the share of women, because women after marriage receive Mehr, which is maintained by their husbands while the male is totally dependent upon inheritance. Hence the share is half.
A Mehr constitutes a womans property, and she can use it as she wants.
If a Muslim widow is childless, she is to receive one-fourth of the property of her dead husband and if she has children and grandchildren, her share is one-eighth of the dead husbands property. If there is more than one wife, the share can be down to one-sixteenth.
3) Christian law
Succession of property by the daughter of a Christian family is governed by the Succession Act 1925. A few important sections of this act are briefly discussed below-
Section 27 of this act provides that there will be no distinction between
i) those who are related to a person deceased through his father, and those who are related to him through his mother; or
ii) those who are related to a person deceased by the full blood, and those who are related to him by the half-blood; or
iii) those who are actually born in the lifetime of the person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive.
Sections 33 deals with the succession of property for Christians, with the former dealing with a special provision where intestate had left a widow and there are no lineal descendants.
Sections 29 to 49 of this act deal with succession among Christians but if there is a will by the deceased, then it is governed by general laws of the act i.e. sections 59 to 391.
As for the rights of a daughter in a Christian family regarding inheritance, she shall get an equal share of her parental properties apart from her siblings. She is eligible to reside on her parental property and receive maintenance from her parents until she marries a man. After marriage, her husband is responsible for maintaining her requirements. When a daughter is a minor, her father is her natural guardian. After becoming an adult, she enjoys the right over her property.[6]
4) Conclusion
Every woman must know their basic rights so that they do not face injustice and can support themselves financially. I conclude from the article that a daughter has the right to property by birth and by law regardless of their religion.
Citation
1) Anmol Singla, "Schools of Hindu Law: An Analytical Approach to the Rules of Inheritance", SSRN. Available at Schools of Hindu Law: An Analytical Approach to the Rules of Inheritance by Anmol Singla :: SSRN. (last visited on 24 december 2023)
2) Subhadra Bhadauria, "Property rights of daughters and daughter n laws in India", 99 Acres, 4 december 2023.Available at Property Rights of Daughter, Daughter-in-law in India (2023) (99acres.com)(last visited on 25 december 2023)
3) Hindu Succession (Amendment) Act, 2005.
4) Subhadra Bhadauria, "Property rights of daughters and daughter n laws in India", 99 Acres,4 december 2023. Available at Property Rights of Daughter, Daughter-in-law in India (2023) (99acres.com)(last visited on 25 december 2023)
5) Subhadra Bhadauria," Property rights of daughters and daughter n laws in India", 99 Acres,4 december 2023.Available at Property Rights of Daughter, Daughter-in-law in India (2023) (99acres.com)(last visited on 25 december 2023)
6) Sri. Sk. Ziauddin, "Succession under Indian succession act 1925 in respect of Christians", District ecourts, last visited 26 December 2023. Christian Succession (ecourts.gov.in)
