Hindu Undivided Family
The term HUF refers to ”Hindu Undivided Family”. It consists of a family with husband, wife and children including unmarried daughters living together. If you are Hindu, Buddhist, Jain or Sikh, you can have a HUF as a separate tax entity if a business is run together by a family. It is presumed that the family continues to be a joint family if it is joint in affairs of food, worship, and estate and even if they live separately but joint in estate, no partition took place, it is an HUF or Hindu Joint Family. HUF and HJF are interchangeable terms.
Coparceners are those members of an HUF that are entitled to seek a partition. Woman married in the family i.e. mother and daughter in law and grandmother are examples of the members of an HUF that are not coparceners.
Daughter’s rights in Property
Earlier, prior to an amendment in The Hindu Succession Act, 1956 in 2005, a daughter was not a coparcener i.e. she wasn’t entitled to ask for a partition in the ancestral property.
In 2005 amendment Act, daughters were given the status of a coparcener but the law was silent whether it could be used retrospectively or prospectively.
Right of a daughter of the self acquired property of her father or mother was same as of his brother, since beginning of the Hindu Succession Act. She was, however, not entitled to seek a partition or share in the ancestral property in the old law.
In Prakash v. Phulavati Supreme Court held that section 6 of The Hindu Succession Act, 1956 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the un-amended Section 6.
Again, in Danamma @ Suman Surpur vs Amar in 2018, Supreme Court held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.
Recently, Hon’ble Supreme Court over ruled both judgments by a full bench judgmet namely Vineeta Sharma vs Rakesh Sharma and decided the matter of daughter’s rights in property by these references:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act , 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
Hence, when discussing a daughter’s rights in property in a nutshell, “a daughter can seek partition in ancestral property whether she was born after or prior to the amendment or her father was alive or not at the time of amendment after this judgment. Any registered partition prior to 20th December 2004 or alienation/sale or disposition can not be challenged afterwards as it was law of the land back then and has to be honoured.“
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