Explained: Daughter’s Right in Property of HUF, Post-Supreme Court Ruling
Recently, the Supreme Court of India, aiming at ensuring the 'right of equality', in a landmark judgement, Vineeta Sharma vs Rakesh Sharma, held that a daughter coparcener would have equal coparcenary rights in a Hindu Undivided Family (HUF) properties or  equal right to family property by birth  irrespective of whether the father coparcener passed away before or after 9th September 2005  (the day when Parliament recognised this right by amending the Hindu Succession Act of 1956).
 
The three-judge bench, led by Justice Arun Mishra, opined that Section 6 of the amended Hindu Succession Act bestowed upon the daughter an equal coparcenary status, along with its rights and liabilities, akin to a son coparcener. This right of the daughter was one bestowed by her birth, and would remain unaffected by the date of the father’s demise. This has finally settled  the issue of  applicability and scope of Section6 of the Hindu Succession Act, 1956  as  amended by the Hindu Succession (Amendment) Act, 2005.
In its decision, the Supreme Court has clarified two points:
 
coparcenary rights are acquired by daughters on their birth; and
 
fathers need not have been alive when the 2005 amendment to the Hindu Succession Act 1956 was passed.
 
Through this ruling, the Supreme Court has now categorically ruled that the daughters’ right flows from their birth and not by any other factor such as the existence of their fathers.
 
Though the judgement envisages rectifying one of the discriminatory social practices, it would require no less than a behavioural change in the mindset of the Indian society to fulfill the goal of gender parity.
 
Coparcener & Coparcenary Property
 
In a layman’s language, coparcener in relation to an HUF family means a person who is entitled to demand partition of his share in the coparcenary property. Essentially, a coparcener is one who shares equally in the inheritance of an undivided property.
 
Coparcenary property is that which is inherited by a Hindu from his/her father, grandfather or great-grandfather, i.e., ancestral property. Only a coparcener has the right to demand partition of property and share in a property increases or decreases by death or birth in a family, respectively. 
 
Before 2005, women were not a part of the coparcenary and hence, could not claim or inherit the property of the father.
 
Hindu Succession (Amendment) Act of 2005
 
The Mitakshara school of Hindu law, a personal law, codified as the Hindu Succession Act, 1956 used to govern the succession and inheritance of property in Hindus. Under this law, only males were recognised as legal heirs or coparceners and women were not a coparcener in the family and thus were denied the right to inherit their father’s property.
 
As a result of this discrimination, Section 6 of the Act was amended in the 2005 to make a daughter of a coparcener also a coparcener by birth in her own right in the same manner as the son. The law also gave the daughter the same rights and liabilities in the coparcenary property as she would have had if she had been a son.
 
The 2005 amendment was passed to confer equal status on sons and daughters of coparceners. Prior to the 2005 amendment, coparcenary rights were granted only to male descendants (i.e., sons) of coparceners. However, while the 2005 amendment sought to grant equal rights to sons and daughters, the wording gave rise to various lacunae which led the Supreme Court to issue contradictory rulings on this issue.
 
Until the Supreme Court Judgement of Vineeta Sharma vs Rakesh Sharma, equal status was granted only to daughters whose fathers (coparceners) were alive when the amendment came into force on 9 September 2005.
 
Coparceners Versus Members
 
In an HUF, there are two categories of persons - members and coparceners. The Supreme Court judgement only affects coparceners.
 
A 'member' is entitled only to maintenance and is granted no inheritance or partition rights in the coparcenary.
 
 
Conflicting Rulings Preceding the Supreme Court Judgement 
 
Although since 2005, it has been the law that women are also successors to their father’s property, the position of a woman to inherit her father’s property after his death, was not very clear as pertaining to the day of enforcement of the law. 
 
In Prakash vs Phoolwati (2016) 2 SCC 36 case, a two-judge Bench headed by Justice AK Goel held that the benefit of the 2005 amendment could be granted only to “living daughters of living coparceners'' as on September 9, 2005 (the date when the amendment came into force). The apex court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005.
 
In Danamma vs Amar, (2018) 3 SCC 343, the apex court had held that Section 6 would apply retrospectively. In this case, the father had died in 2001, leaving behind two daughters, two sons and a widow. The Court had held that “it is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by birth,” and, consequently , observed that the two daughters being coparceners, were entitled to equal share in the coparcenary property even though the father was not alive when the substituted Section 6 came into force in 2005.
 
Important Aspects of the Supreme Court Judgement
 
The three-judge Bench headed by Justice Arun Mishra ruled the following:
 
  • That a Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.

 

  • The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does. Since the coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9.9.2005.

 

  • If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

 

  • Daughters cannot be deprived of their right of equality conferred on them by Section 6.

 

  • The judges also used the common saying that a son is a son until he gets a wife while a daughter is a daughter throughout her life.

 

  • The judgement noted that several cases on this issue were pending before different courts and were already delayed.

 

  • The Court requested the pending matters to be decided, as far as possible, within six months.
 
The Court also categorically held that after the 2005 Amendment, interest in coparcenary property can be acquired only by birth or through adoption within permissible degrees, and not otherwise. Further, the Court has categorically held that survivorship as a mode of succession of a Mitakshara coparcener, has been abrogated since 9 September 2005, by virtue of Section 6 (3) of the 2005 Amendment.
 
Daughters of coparceners will benefit from this judgement. However, the status of a coparcener's wife (who is a member of an HUF, as above) remains the same. Thus, wives have only limited rights of maintenance and cannot seek partition of their husband's property, among other things.
 
Daughters will now be treated on par with sons of coparceners and will be granted equal coparcenary rights in their father's property on their birth. Further, daughters' marital status will not affect the rights conferred on them by the 2005 amendment – hence, they continue to be part of their father's HUF post-marriage.
 
Daughters can now request the partition of their father's coparcenary property and seek an equal share with their siblings and other coparceners. On acquiring a share in a coparcenary property, a female coparcener can bequeath her HUF share to any beneficiary that she chooses (and to the exclusion of others) in her will.
 
Significance of the Judgement
 
  • Ended Legal Ambiguity: The verdict has cleared the confusion about law and made it clear that the amendment to the Hindu Succession Act, 1956 granting equal rights to daughters to inherit ancestral property would have retrospective effect.

 

  • Consonance in the Constitutional Spirit: The court recognised that gender cannot be grounds for denying anyone their inheritance rights. This interpretation by the Supreme Court has removed male primacy over Hindu ancestral property.

 

  • Giving the daughter equal coparcenary rights is in consonance with the spirit of equality, under Article 14 of the Indian constitution.

 

  • A Step towards Women Emancipation: It is a major push for women who lack economic resources and are often marginalised by male members of the family. The fact that a law and not just a will decides women’s property rights is significant.
 
The Real Impact of the Ruling
 
Although this is a landmark judgement which has cleared up previous confusion and improved women's rights under the law, its real-world application is limited. The judgement applies only to HUF property and does not affect personal or self-acquired assets which are held individually.
 
Personal and self-acquired assets are passed on under will or intestate succession law. In reality, most personal wealth, including ownership rights in valuable family businesses, are held in the personal names of the patriarch or promoters or in private trusts, holding companies or limited liability partnerships. 'Older' business families may continue to hold some ancestral wealth in HUFs, but the scale and materiality of such holdings are usually limited. Few business families are setting up new HUFs and most existing HUFs are being dissolved. Hence, this judgement may not help to transfer real wealth into the hands of daughters. However, although more needs to be done, this decision is still a victory for daughters.
 
Associated Challenges and the Way Forward
 
While the ruling is a progressive step towards gender parity, it is by no means a guarantee that Indian families will willingly cede reins to their female members. This is because, passing on the succession of the family enterprise only to sons stems from deep-rooted tradition and the patriarchal notion in the society.
 
Given this context, it is quite likely that some business families after this ruling, will bypass this ruling, to park their assets or write wills to bequeath assets in favour of male heirs.
 
There is also a challenge in ensuring that women are actually empowered by this legal provision, as the majority of women are not aware about their rights.
 
Though the judgement is a progressive step in pursuit of creating a level-playing field in legal rights for women, bringing behavioural change in society will play a bigger role towards the goal of gender parity.
 
Thus, there is a need to bring a change in the patriarchal mindset of the society and ensuring that women have access to the same opportunities as men in acquiring educational qualifications and the training needed to run an enterprise.
 
Moreover, the fact that it has taken 15 years for the issue to be clarified highlights the urgent need for a clear civil code based on universal principles of natural justice and fundamental rights.
 
For Further Reference, also read Taxation of HUF, Family Arrangement & Trust
 
(CA Vimal Punmiya is the Proprietor of Vimal Punmiya & Co and has been in this profession for more than 45 years. He has written a number of books on subjects like transfer of flats, stamp duty, registration and capital gains.)
 
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    COMMENTS

    RVR

    1 month ago

    The government has exposed its inherent bias by focusing on a particular communitys personal law instead of the Uniform Civil Code. Everyone is agreed that the Goa Civil Code is ideal - then why the delay in rolling it out nationally ?

    mywopy

    1 month ago

    Modern working class families treat their male and female children equally and provide them with the same opportunities for pursuing their career and shaping their future.

    Only among Indian families, living here or with the one's settled abroad where ancestral wealth becomes a common reason for family disputes.

    Citizens of the developed world make their own means to living and not build their hopes and dreams on the family wealth. Youngsters in India should be encouraged to do the same.

    Newme

    1 month ago

    Too many litigations will start retrospectively.

    Sri

    1 month ago

    This was a very educative Webinar by a very knowledgable Lawyer Shri VA Vimal Punmiya. There are so many laws that for a layman it is very difficult to understand all. And thank you Sir for this immediate post. Helps us a lot. Thanks

    How to change name on Indian passport after marriage or divorce?
    A passport is an important document, which is considered as a proof of identity (POI) and proof of address (POA). In many cases, women change their surname after marriage and want to update the same on their passport.  
     
    In case a lady retains her maiden name after marriage, nothing changes in the passport application process and no need to update an existing passport.
     
    However, the instructions booklet of the passport application form on the Passport Seva website says: “This will be applicable to an applicant who has even marginally changed the name or a female who has changed her name or surname after marriage”.
     
    You have to apply for a 'Re-issue' of passport and get the specified change done in the personal particulars to change the name in the passport. You will also have to submit required documents along with the application form to validate your request. 
     
    How to apply for reissue of passport
     
    Here are step-wise processes to change name on passport after marriage. There are two processes; you can follow either of them.
     
    Steps for online form submission
     
    1. First of all, you need to register through the Passport Seva Online Portal by clicking on ‘Register Now’ link on its Home Page
     
    2. You then have to log in on the log in page of the passport seva portal with the registered Login Id
     
    3. You then need to click on ‘Apply for Fresh Passport/Re-issue of Passport’ to proceed further
     
    4. You will have to fill the required details in the form and submit.
     
    5. Choose the ‘Pay and Schedule Appointment’ link on the View Saved / Submitted Applications screen to schedule an appointment.  Please note that online payment has been made mandatory for booking appointments at all Passport Seva Kendras/Passport Offices.
     
    6. You need to click the Print Application Receipt link to print the application receipt containing Application Reference Number (ARN)/Appointment Number
     
    7. After making a payment, visit the Passport Seva Kendra (PSK)/Regional Passport Office (RPO) where appointment has been booked, along with original documents
     
    Steps for e-Form submission
     
    1. You have to download the e-Form through the ‘Download e-Form’ link available on the home page in this process. 
     
    2. You then have to fill the downloaded e-Form and click the Validate and Save button in it. This will generate an XML file, which will be required later for uploading in the system.
     
    3. Follow the same process mentioned above and log in to the Passport Seva Online Portal with the registered Login Id. 
     
    4. Upload the XML file through the Upload e-Form link after logging in successfully. Please note that only XML file is accepted by the system and hence do not upload the PDF form at this stage. 
     
    5. You have to go through the same payment process (as mentioned above) to schedule an appointment in your nearest Passport Seva Kendra (PSK)/Regional Passport Office (RPO) along with the original documents.
     
    6. After making a payment, visit the Passport Seva Kendra (PSK)/Regional Passport Office (RPO) where appointment has been booked, along with original documents
     
    Documents required for name change on passport in case of marriage:
     
    1. Original marriage certificate with a photocopy is required. You also need to submit a self-attested photocopy of the spouse's passport.
     
    2. Old passport in original with self-attested photocopy of its first two and last two pages, including Emigration Check Required (ECR) /Non-ECR page (previously ECNR) and the page of observation (if any), made by Passport Issuing Authority and validity extension page, if any, in respect of short validity passport
     
    3. Proof of Present Address 
     
    Changing name on passport after divorce: You have to submit a court-certified copy of divorce decree or self-attested copy of divorce certificate to change your name on account of divorce.
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    COMMENTS

    rs235m

    1 month ago

    The birth certificate and school leaving certificate will be having different name than in new passport.It is there fore desirable to continue with name surname of parent.

    mywopy

    1 month ago

    Adopting a new surname after marriage creates too many legal hurdles in the future, which could hinder future career prospects and obstacles for foreign travel, better to stick with your original surname.

    REPLY

    s5rwav

    In Reply to mywopy 1 month ago

    I Suggest Enactment of Law to Remove Surnames. I am Babubhai Vaghela from Ahmedabad. Thanks.

    FRANCISXAVIER

    In Reply to s5rwav 1 month ago

    very correct. in tamilnadu only father or mother name is allowed as a surname.

    s5rwav

    1 month ago

    If media reports are to be believed, Wife of Mr Narendra Modi has been denied Passport. I am Babubhai Vaghela from Ahmedabad. Thanks.

    Lack of English fluency limits online fraudsters to Hindi belt
    Online fraudsters might have mastered the art of duping people with various new stratagems but their inability to communicate fluently in English has limited their reach to the Hindi-speaking belt. An analysis of complaints received on the National Cyber Crime Reporting Portal reveals that the majority of the victims are from Delhi, Haryana, Uttar Pradesh, Madhya Pradesh and Rajasthan.
     
    On the contrary, when it comes to getting SIM cards to be used in the crime, the fraudsters are getting them from distant places like Assam and Telangana. It was established that the SIM cards are sourced from regions as far-off as Assam's Barpeta, and also Telangana.
     
    "This is done mostly with the help of long-distance transporters (mostly truck drivers) that are from the Mewat region as well as some distant relatives of these cyber criminals who have settled in those areas," DCP, Cyber Cell, Anyesh Roy said.
     
     
    A module recently busted by the Delhi Police with the arrest at least 10 people and apprehension of two juveniles has revealed that the fraudsters use two basic methods to dupe people in the Hindi-speaking belt.
     
    In one, the accused pose as army or paramilitary personnel posting advertisements on popular e-commerce websites for sale of their goods, mostly cars or bikes. They even post photographs of vehicles, mostly taken from the internet, that have either Indian Army or the name of a paramilitary force written on them, with the intent to first win the trust of the victim.
     
    They, then, lure potential buyers to transfer an advance amount into a bank account or an e-Wallet account to seal the deal.
     
    Once this initial amount is paid, they coax the victim to pay more on the pretext of transport and handling charges, GST, etc. Once this is done, they cut all contacts with the victim.
     
    In the second mode, the accused, posing as army or paramilitary personnel, contact the seller of any second-hand goods on e-commerce sites. Once initial contact is established, they tell the seller that they would send the money via a QR code that needs to be scanned. The victim, believing the accused to be a genuine buyer, scans the malicious QR code sent to their mobile and the money, instead of getting credited, gets debited from their account.
     
    With the objective of dismantling the cyber fraud 'industry' flourishing in the tri-junction region of Haryana, Rajasthan and UP, the Delhi Police's Cyber Crime Unit/CyPAD, has started concerted action against its entire ecosystem comprising callers, the 'money mules' and the SIM sellers.
     
    Acting on approximately 300 complaints received on National Cybercrime Reporting Portal, action has been initiated against the entire fraud chain comprising of callers impersonating as prospective buyers of second hand goods listed on mobile apps, account holders in whose bank accounts the defrauded money is transferred and SIM sellers who have issued multiple SIM cards on fake and bogus IDs.
     
    Later, raids were conducted in the Mewat region and ten accused persons were arrested.
     
    The Delhi Police has also given people some tips to safeguard themselves from being defrauded.
     
    "Verify credentials of buyer or seller before making or receiving payment... a buyer or seller showing unreasonable hurry or urgency is a likely fraudster. Also don't click on any link or scan a QR Code.. You may lose money. Try avoiding accepting or making advance payment. It may be a trap to defraud you. Fraudsters use fake identity proof of national institutions to gain confidence and faith. Beware of any such attempt," the DCP said.
     
    Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.
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    COMMENTS

    pingaleadvocate

    1 month ago

    If daughter died after 2005 Amendment Act then her legal heir can claim her share in her HUF property.??????
    Or
    If daughter file partition suit after 2005 amendment Act in civil court and during pendency of partition suit if she died then her legal heir as her son or daughter can continue to be party for suit as legal heir?????

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