By:- Tanvi Chopra
DISSOLVING GENDER DIFFERENCES — GRANTING EQUAL RIGHTS TO DAUGHTERS AND SONS IN THE ANCESTRAL PROPERTY
For the longest time, India has been a country where women were considered as baggage on the shoulders of their parents and were married and sent away before they even attained the age of adulthood. In our country, where women are not considered equal to men, a daughter was never provided with a right in the ancestral property or in the property of her father. This practice led to discrimination against women as they were not granted equal rights to men. It is in the spirit of the constitution that everyone irrespective of gender is treated equally in the eyes, but not giving women the same rights in the property as men was a major lacuna in the law before the 2005 amendment was enacted, which eventually granted equal rights to women. It is now in the 21st century, where daughters have been given the rights to have a share in their father’s property. This shows the advancement and evolvement of the Indian society which earlier did not accept women as equals but now are considering them to be at par with men and granting them the same rights as the sons of the family would be granted. This enactment has proved to be a very constructive step undertaken by lawmakers.
Evolution of daughter’s right in the coparcenary property
To have a uniform law that governs the rights of the descendants in the family property, the Hindu Succession Act, 1956 was enacted. It provided a clear procedure as to how the property would be transferred to the legal heirs of the owners of the property. This act initially followed the principle of ‘survivorship’ which meant that the property would be transferred to the lineal descendants only after the common ancestor has died. While following this principle, women were never considered in the lineal descendants and only the male heirs were provided with a part in the property.
It was in the Hindu Succession (Amendment) Act, 2005 that section 6 of the act was edited and women were included in the lineal descendants who shared the ancestral property. According to this amendment, a woman would become a coparcener in the property right from her birth, she would be given equal rights as that of a son and would have the liabilities that she would have if she was the son of the coparcener. Any reference made to the Hindu coparcener would now also include the daughters of the coparcener and not just the sons. The term coparcener as defined in the Act means any person who has a right in the ancestral property and would inherit the property either from his father, grandfather or great grandfather.
In the evolved and amended law, a woman would have equal rights in the property as the son would have even if the common ancestor has died intestate. The 2005 act clearly laid down certain situations which made the law more general neutral. In the case of the partition of a Hindu undivided family, the daughter would also be equally involved in the partition. Section 6 of the Act also provides that the share of the pre-deceased child as he had gotten if he had been alive shall be allotted to the surviving child of that pre-deceased child. Here, a child includes both a son and a daughter. Another major amendment brought by the 2005 act was that it abolished the principle of survivorship and followed the testamentary or intestate means of inheritance of property.
The term testamentary means when the ancestor has died after writing a will and the term intestate signifies that the ancestor has died without writing the will. The act also omitted section 23 of the Hindu Succession Act. 1956. Section 23 of the former act provided that of the ancestor dies intestate and he has both a son and a daughter and his property includes a house where all the family members are living, the women would have the rights to ask for partition unless the males of the family divide their shares. The daughters only had the right of residence in that property. This provision was very clearly violative of the right to equality provided to each citizen of the country and Article 14 provides that everybody would be treated equally under the eyes of law irrespective of their gender. Thereby, the 2005 act omitted this section which now provides women with the right to actively participate in the partition of such property if the ancestor dies intestate.
Landmark Judgements recognizing the rights of Hindu Women
- Prakash & Ors. v. Phulwati & Ors
In this case, the hon’ble court stated that the women would have rights in their father’s property irrespective of their date of birth. It is of no significance whether the daughter was born before or after the enactment of the Hindu Succession (Amendment) Act, 2005, she would still have equal rights in her father’s property. But it stated that if the ancestor who has the ownership of property has died before the commencement of this act, i.e., before 9th September 2005, the daughters of such ancestors would not be treated as coparceners. Only their sons would be coparceners who can take over the property. In such a case, the principle of survivorship shall only apply and the lineal descendants would be the sons of the family. This case suggested that the 2005 amendment act is prospective in nature and not retrospective.
- Danamma v. Amar Singh
The apex court in this landmark judgement gave a contracting decision to Prakash v. Phulvati case. The Hon’ble court stated that if the common ancestor has died before the enactment of the 2005 act i.e., before 9th September 2005 and a case has been filed in regard to the same, the women coparceners will also have an entitlement to the share in the property. This case suggested that the 2005 amendment act is retrospective in nature and is applicable to cases even before the enactment. The date of birth of the daughter and the death of the father or the property owner has no role to play, the daughter would anyways have a right to the ancestral property.
- Vineeta Sharma v. Rakesh Sharma & Ors.
After the dissenting judgements of the hon’ble court in the Phulvati case and the Danamma Case, there was confusion relating to whether the act of 2005 is prospective in nature or retrospective in nature. This judgement is the landmark judgement that clarifies this confusion and clearly states how the act is to be interpreted. The Hon’ble Supreme Court clearly stated that it would be discriminating and unfair if equal rights are not provided to both genders, however, you apply the act. Section 6(1) of the Act clearly provides that the rights are given to a coparcener by birth and therefore, a daughter also is entitled to a share in the property right from her birth. It is irrespective of whether the father or the common ancestor of the property is living or dead at that time. The decision of the Phulvati case was overruled by the hon’ble apex court in this instance case and this act has to be interpreted retrospectively. The right of a daughter in the succession of the property is given to her by birth and equal rights are provided as those provided to the son.
It took a lot of time for the country to realise that the daughters should be treated equal to the sons of the family and should have the same rights granted like that of the son, whether with respect to being educated or be it in the property of their father. After many landmark judgements, this decision was finally taken in the form of the 2005 amendment act so as to promote gender equality in society, which is imbibed in the motive of the constitution since the very beginning. With the aid of this amendment, the women are now at par with their male counterparts, they are equally able to participate in the property-related matters and disputes, they are entitled to an equal share in the ancestral property and totally at par with the sons of the family.
In the author’s opinion, it was high time that this was amended and introduced in the legal system of the country. There still exist many people in villages or small towns who aren’t aware and do not treat women as the same. Steps and measures should be taken so as to make such women aware that they have been provided rights recognized by law and can equally participate in the property rights of their ancestors. Sons and daughters should be treated equally in all spheres and therefore, this amendment shows the progress of society in abolishing gender differences. It was a great step that was needed not only for providing property rights to women in India but to make people and society aware that women should be treated equally to men in all spheres.
Author Tanvi Chopra is a second-year law student from Bennett University, Greater Noida. She believes that such socio-legal issues should be handled with utmost care and caution as they are very delicate matters.
 Danamma v. Amar Singh 2018 2 SCC 385
 Prakash & Ors,. v. Phulvati & Ors. (2016) 2 SCC 36
 Vineeta Sharma v. Rakesh Sharma & Ors. 2019 6 SCC 164