In Hindu Succession Act, daughters can be coparceners | Mint
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Business News/ Money / Calculators/  In Hindu Succession Act, daughters can be coparceners

In Hindu Succession Act, daughters can be coparceners

Prior to the 2005 amendment in the Act, only male members descended from a common ancestor could be coparceners


This is with regard to the A Supreme Court (SC) judgement of 2 November 2015 on daughter’s legal right in father’s property. My father expired in 1985, leaving no Will. We are one brother, three sisters and our mother. I am the eldest child (son). Who is the beneficiary of this property that was initially in my father’s name? My mother is paying the house tax.

—Sunit P.P.

It’s not clear whether the house is a self-acquired property of your father or is an ancestral property that forms a part of a Hindu Undivided Property (HUF or a coparcenary property). We are assuming that you are governed by the Mitakshara school of Hindu law. Under this, prior to the 2005 amendment in section 6 of the Hindu Succession Act, 1956, (HSA), only male members descended from a common ancestor such as sons, grandsons and great-grandsons could be coparceners and had an interest by birth in such coparcenary property. But due to the HSA amendment, daughters are also coparceners as sons are.

The SC in the recent case of Prakash & Ors Vs. Phulavati & Ors (which we presume you are referring to) dealt with the rights of a daughter in coparcenary property (and not self-acquired property) and held that the amendment to the HSA is prospective and is applicable to a living daughter of a living coparcener as on 9 September 2005 (i.e., at the commencement of the amendment Act), irrespective of when such daughter was born.

So, in your case, as your father passed away in 1985 (prior to the amendment Act of 2005), your sisters would not be entitled to a separate share in the house as coparceners (assuming that the house forms part of coparcenary property), and the law as it stood prior to the amendment Act would apply. According to the earlier law, daughters were not coparceners and upon the death of a male coparcener, his interest in the coparcenary property, would devolve by survivorship upon the surviving members of the coparcenary, except if the deceased had left surviving him a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative. In this case, the deceased coparcenor’s share would devolve by succession and female relatives specified in class I of the Schedule or a male relative specified in that class who claims through such female relative would be entitled to a share in the deceased coparcener’s shares in the HUF.

Your father’s interest in the coparcenary would be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death and would have to be computed according to the law of partition applicable at the time of partition. If partition had taken place immediately before the death of your father, your mother, although not a coparcener, would be entitled to a share on partition between her husband and son.

Accordingly, on partition you, your father, and your mother would each be entitled to a one-third share of the coparcenery property. (We are assuming here that you have no children and there are no other coparceners in the HUF).

Your father’s one-third share in the coparcenery property would then devolve by succession simultaneously upon your mother, sisters and yourself in equal proportion (being the class 1 heirs).

There has been no change in the law with regard to succession to any self-acquired property of a Hindu male dying intestate (i.e. without a Will). Daughter are entitled to an equal share as the son. Accordingly, if the house was the self acquired property of your father, then on intestate succession, it would devolve upon you, your mother and each of your sisters equally (assuming these are the only heirs).

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Published: 05 Sep 2016, 06:09 PM IST
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