Synopsis–The Supreme Court in its judgement gave equal rights to daughters as sons. Would it mean that under no circumstances can a daughter be denied her legal right over her parents’ assets? ET Online spoke to legal experts and here’s what we found out about the judgement.
“A son is a son until he gets a wife. A daughter is a daughter throughout her life.” this is what Justice Arun Mishra said as he pronounced the landmark judgment that provides daughters an equal share in the joint family property under the Hindu Succession Act.
In a judgement pronounced in August 2020, the Supreme Court said that a daughter will have an equal share in inheritance as a son regardless of when she was born and whether her father was alive or not when the Hindu Succession Act was amended in 2005. Therefore, any assets, either self-acquired by parents or by way of ancestral property, that a son is eligible to inherit, a daughter is legally eligible to inherit as well.
So, does it now mean that under no circumstances can a daughter be denied her legal right over her parents’ assets? After speaking to legal experts, ET Online found out that even now there can be situations when a daughter is not the legal heir of her parents’ assets.
Here is a look at when a daughter is a legal heir of her parents’ assets and when she is not.
- When properties and other assets are self-acquired by parents
When a property or any other assets such as gold jewellery, shares etc. are self-acquired by the parents, then in such a case whether a daughter is entitled to inherit a share in them will depend on how the parents divide their assets among their children.
If the parents make a will or pass on the assets by way of a trust or gift deed, a daughter can be excluded.
Neha Pathak, Head of Trusts and Estate Planning, Motilal Oswal Private Wealth Management says, “There are instances when a daughter can be excluded by her parents in passing on of the assets. However, this is a possibility only for self-acquired assets. If the parents specifically mention in their will that a particular daughter is to be excluded from inheriting their assets, then in such a case daughter will have no legal right over the assets of her parents. Similarly, if the parents gift their assets via a gift deed in their lifetime to children other than their daughter, then the daughter has no right over the assets. In case of private family trust, the parents are required to mention the beneficiaries of the trust. The parents can exclude their daughter from the list of beneficiaries thereby excluding her from inheriting any assets held by the trust.”
However, this is not the case if the parents die intestate, i.e., without a will.
Nidhi Arora, Director, PDS legal says, “If the parents have passed away intestate, then in such a case both son and daughter will have equal right over all the assets such as property, cash, jewellery etc. According to Hindu Succession Act, 1956, both son and daughter are class I legal heirs of the father and mother. Thus, they both have equal right over the assets of both of their parents.”
- In case of ancestral properties and coparcenary properties
Apart from self-acquired properties, a family can have ancestral property and/or coparcenary properties as well.
In legal parlance, there is a difference in the definitions of ancestral property, coparcenary property and Joint Hindu Family property.
Although the definitions are different, the treatment of the legal right of a daughter in such properties is the same.
Pathak said, “It has been clarified by a Supreme Court judgement dated August 11, 2020 that daughters have an equal right in the coparcenary property. This is applicable on HUF and/or ancestral assets.”
Bijal Ajinkya, Partner, Khaitan & Co. said: “In case of coparcenary or HUF property, a daughter who was living when the 2005 amendment to the Hindu Succession Act was passed is entitled to a share which is equal to that of a son. This applies from the date of the 2005 Amendment and is irrespective of whether her father was alive at the time or not. The effective date of amendment is 9 September 2005.”
Ajinkya adds, “If the daughter died before the 2005 Amendment, then she would not be entitled to such a share. However, the Supreme Court has not opined on the rights of the daughter’s legal heirs and this point remains open to interpretation.”
Now, what if the partition of ancestral/coparcenary properties took place before the amendment came into effect in 2005?
Arora says: “A daughter has been included as a coparcener on and from the year 2005 after the commencement of the Hindu Succession (Amendment) Act, 2005 (‘Amendment’). However, in case the coparcenary properties have been disposed by a way of execution of a partition deed or any other form of testamentary disposition before 20 December 2004, the daughter cannot challenge to invalidate or affect the same (as per section 6 of the Hindu Succession Act, 1956).”
- Other situations when a daughter may be disqualified from inheriting
In addition to the above, certain disqualifications such as commission of murder, illegitimacy and conversion apply to all heirs, whether male or female in case of intestate succession, explains Arora.
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