Daughter's Rights in Ancestral Property

A daughter's rights in ancestral property refer to the legal rights that she has over her family's ancestral property. Ancestral property is the property that has been passed down from generation to generation within a family. In India, women now have the right to inherit and own property, including ancestral properties. Initially, daughters were not considered legal heirs and were unable to claim a share of the property. However, with time and several legal reforms, daughters have been granted equal rights to sons in ancestral property

This article is a deep insight into this subject and helps understand their rights and laws. The change is to such an extent that when it comes to planning for and managing wealth, Indian women have become quite assertive and open about it. 

Ancestral Property rights of a daughter before 2005

Before the enactment of the Hindu Succession Act of 1956, daughters did not have equal rights with sons in ancestral property. The property rights of a daughter were governed by various personal laws, which varied according to the individual's religion. The property would pass only to the male heirs, such as sons, grandsons, and great-grandsons. Daughters were not considered coparceners in the ancestral property and had no right to inherit it.

Yet, daughters were allowed to share in the self-acquired property of their father, which was equal to half the share of a son. The daughter could claim this share only if the father died without leaving a will.

Daughter’s right to property after 2005

The Hindu Succession (Amendment) Act, 2005 was passed to amend the Hindu Succession Act 1956 and provide equal property rights to daughters in ancestral property. The revision was made to advance gender equality and stop gender discrimination in property rights.

According to the amendment, daughters have the same rights as sons in ancestral property, and they are viewed as coparceners in the ancestral property of their family. It means daughters have an equal right to inherit ancestral property and their male members.

The edict applies to ancestral property not divided or disposed of before 20th December 2004. The daughter has no right if the ancestral property has been divided or sold off before this date.

Yet, it is vital to note that the act does not apply to any property obtained by the individual through gift, will, or inheritance. In those cases, property rights will be ruled by the conditions of the Indian Succession Act 1925.

Rights of Married Daughters as per the Hindu Succession Amendment Act 2005

After marriage, a daughter will cease to be a member of her parental Hindu Undivided Family but will continue to be a coparcener. So, she is allowed to ask for a share of the property in the HUF and can become the Karta of the family if she is the family's eldest daughter.

Even in the case of a demised daughter who was married, her children are allowed to ask for shares if she had accepted when alive on the division date. If the children weren't alive on that date, the grandchildren would be allowed to play the part the daughter would have taken on the division.

Yet, a daughter cannot give her share in the Hindu Undivided Family property when she is alive. Still, she can give away her share in a Hindu Undivided Family property by will. If she dies without leaving a will, her share will not be divided among the other HUF members but carried forward to her legal heirs. 

Also Read : Property Rights Of Daughters Married Before And After 1989

Property Rights of daughters as per different religions

Right of daughters as per Hindu Law

As per the Hindu Succession Act 1956, several amendments have significantly expanded the daughter's rights in ancestral property. The latest amendment in 2005 has given daughters equal rights as sons in ancestral property. The following is the daughter's rights on the ancestral property as per Hindu law:

1. Equal right to inherit ancestral property: Daughters now have an equal right to inherit ancestral property, like sons. It includes both movable and immovable property.
2. Coparcenary rights: A daughter is deemed a coparcener by birth in a Hindu Undivided Family (HUF) and has the right to ask for the partition of the ancestral property.
3. Retrospective effect: The amendment made in 2005 has a retrospective effect, which means that it applies to all property inherited before or after the amendment.
4. Right to claim a share in joint family property: Daughters have the right to claim their share in the joint family property, which includes ancestral property and property acquired through joint family income.
5. Right to sell the ancestral property: A daughter has the same rights as a son to sell the ancestral property.
6. Inheritance in the absence of a will: In the absence of a will, a daughter has an equal right as a son to inherit the ancestral property.
7. Right to maintenance: Daughters are also entitled to maintenance from ancestral property if they cannot support themselves financially.

Right of daughters as per Muslim Law

Under Muslim law, the inheritance of ancestral property is governed by Shariah, which is based on the Quran and Hadith. The rules of inheritance for daughters are different from those for sons. 

1. Share in ancestral property: Daughters have a fixed share in the ancestral property of their family, which is half the share of a son. For example, if there are two sons and one daughter, the daughter's share will equal one-third of the property.
2. No right to inherit self-acquired property: Daughters do not have any right to inherit the self-acquired property of their parents or any other relative.
3. No right to inherit from agnatic relatives: Daughters do not inherit from their agnatic relatives, i.e., their father's or grandfather's male relatives.
4. Right to maintenance: Daughters are entitled to maintenance from the ancestral property if they cannot maintain themselves financially.

Right of daughters as per Christian Law

In India, there is no specific law governing the inheritance of ancestral property for Christians. Instead, the inheritance is governed by the Indian Succession Act 1925, which applies to every region. 

1. Equal right to inherit ancestral property: Under the Indian Succession Act 1925, daughters have an equal right to inherit ancestral property along with their male counterparts.
2. Inheritance in the absence of a will: In the absence of a will, a daughter has an equal right as a son to inherit the ancestral property.
3. Right to maintenance: Daughters are entitled to maintenance from the ancestral property if they cannot maintain themselves financially.

Section 33 to 49 of the Hindu Succession Act also works with the property under Christian law. In contrast, section 33 sub-section A of the Act expressly deals with the unique condition where the demised has left a widow and no lineal children.

Right of daughters as per Parsis Law

In India, Parsis are governed by the Parsi Personal Law based on their religious texts and customs. 

1. Equal right to inherit ancestral property: Daughters have an equal right to inherit ancestral property along with the male heirs.
2. Inheritance in the absence of a will: In the absence of a will, a daughter has an equal right as a son to get the ancestral property.
3. Right to maintenance: Daughters can maintain ancestral property if they aren't financially independent.
4. Share in self-acquired property: Daughters are allowed to share in the self-acquired property of their father, like their son.

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Conclusion

The daughter's rights in ancestral property is a complex and evolving legal issue across countries and regions. Many jurisdictions have amended the law to give daughters equal rights to ancestral property like sons. It has been a decisive step towards gender equality, as it admits daughters' equal worth and contribution to the family and society. The shift in the law has also helped to address the historical gender bias and discrimination that has broke women in inheritance matters. Yet, some cultural and traditional beliefs may continue to limit or challenge the implementation of these legal changes.

Disputes arising after sharing ancestral property with daughters are common family property disputes. Sometimes, families may oppose sharing ancestral property with daughters or find ways to circumvent the law. The question of daughters' rights in ancestral property highlights the ongoing struggle for gender equality and the need for legal and social reforms that promote social justice.

FAQs

Can the ancestral property be transferred to daughters when the parents are alive?

In many jurisdictions, ancestral property can be transferred to daughters during the parents' lifetime through gift or sale. Yet, the specific laws and rules around such transfers may vary.

What if the ancestral property was transferred to a son or other relative? 

If an ancestral property has already been transferred to a son or other relative, it may be difficult for a daughter to claim her rights to the property. However, it is essential to consult your location's relevant laws and regulations and seek legal advice if necessary.

Can daughters sell their ancestral property? 

In many jurisdictions, daughters have equal rights to ancestral property as sons and can sell or partition their share of the property. However, the specific laws and regulations around such transactions may vary.

Author Bio: Within his stakeholding firm, BAJAJ DESAI RESHAMWALA, Adv. Nisarg J. Desai is the principal Property, Civil and Commercial Litigation & Non-Litigation partner. With a demonstrated history of more than 7 years, of providing thorough legal consultation in the industry, Nisarg is a seasoned professional. Nisarg has completed his graduation with Magna cum laude in B.A.LL.B.(Hons.) and LL.M. with a specialization in Business Law from the renowned Faculty of Law, The Maharaja Sayajirao University of Baroda. Nisarg has appeared on behalf of clients in notable courts including, the High Court of Gujarat, tribunals-Commercial Arbitrations-Mediations in Gujarat, the City Civil Court at Ahmedabad, and the District & Sessions Courts in the State of Gujarat. To name a few he has appeared and worked for Tata Unistore Ltd. (TATA CLIQ), Spinny, Union Bank of India, Divaym Hospital under the Divyam Institute of Psychiatry, PhysicsWallah, etc. In addition to being skilled at handling criminal, commercial, and matrimonial cases, Nisarg is also skilled at drafting legal documents such as opinions, petitions, suits, applications, notices, contracts, etc. Nisarg also provides excellent consulting services including compliance, contract negotiations, contract reviews, and commercial arbitration. Nisarg's pre-enrolment internships with prominent legal firms and experienced advocates have sharpened his research abilities and provided him with significant litigation and non-litigation experience. 

To know more about him one can visit his LinkedIn profile at https://linkedin.com/in/iamnisargdesai