Daughter's Share in Ancestral Property After Vineeta Sharma

What did the Supreme Court decide in Vineeta Sharma?

A three-judge bench of the Supreme Court held on 11 August 2020 that a daughter becomes a coparcener by birth, in her own right and in the same manner as a son, under Section 6 of the Hindu Succession Act as substituted by the 2005 amendment. Because the right comes from birth, the court said, it does not depend on the father being alive on 9 September 2005, the date the amendment came into force. A daughter born before 2005 can claim the rights from that date; a daughter born after it has them from birth.

The court overruled Prakash v Phulavati (2016), which had confined the amendment to cases where both father and daughter were living on 9 September 2005, and set aside the contrary parts of Danamma v Amar (2018). It also held that the notional partition which the old Section 6 assumed on the death of a male coparcener before 2005 was only a legal fiction to work out his share. It did not actually break up the coparcenary, so the remaining coparcenary property stayed joint and the daughter could become a coparcener in it from 2005.

Two limits came with the ruling. Partitions completed before 20 December 2004 by a registered deed or a decree of court remain valid, as do sales, gifts and wills made before that date. And a defence of oral partition is not to be accepted as a normal matter; only in exceptional cases, where it is supported by public documents and was carried out as finally as a decree would be, can the court accept it. The court asked trial courts to decide pending cases in line with the judgment, preferably within six months.

The provisions that decide a daughter's claim

Does the daughter's right apply to all of her father's property?

No, and this is where most claims go wrong. The coparcenary right by birth applies only to coparcenary property: property that has come down as joint family property, or that a coparcener has thrown into the common stock. It does not apply to a house the father bought from his salary, or to property he inherited from his own father after 1956 under Section 8. The Supreme Court has held for decades that property inherited under Section 8 is the heir's separate property, not joint family property in his hands with his children.

In practice, that means many Delhi families do not own coparcenary property at all. A plot in a DDA colony allotted to the grandfather in 1970, inherited by the father when the grandfather died in 1995, is the father's separate property. The daughter has no share in it by birth. She will have an equal share with her brothers and mother if the father dies without a will, but he can leave it to whomever he likes by will.

Coparcenary property usually exists where the joint family held property before 17 June 1956, the date the Hindu Succession Act came into force, and it has passed by survivorship since; or where the family has formally run a Hindu Undivided Family with its own assets, as some business families in Delhi do for tax reasons; or where someone has deliberately blended his own property into the family pool. If none of those fits, the daughter's case is one of inheritance, not coparcenary.

How much is a daughter's share? Common situations

These figures assume a family of father, mother, two sons and one daughter, and no will unless stated. Change any fact and the answer can change.

What if my father died before 2005?

That alone no longer defeats your claim. Before Vineeta Sharma, many trial courts dismissed daughters' suits on the ground that the father had died before 9 September 2005, relying on the 2016 decision. That reasoning is gone. If the property was coparcenary property, it was not partitioned by registered deed or decree before 20 December 2004, and it is still held jointly, the daughter became a coparcener in it on 9 September 2005.

What changes is the arithmetic. When a male coparcener died before 2005 leaving a female Class I heir, the old Section 6 treated his share as passing by succession, so the daughter inherited a fraction of his share as an heir. The rest of the property stayed joint among the surviving coparceners, and it is in that remaining coparcenary property that she became a coparcener in 2005. Working out the final figure needs the exact dates of each death and any transfer, and the cases on the method are not uniform. Expect this to be argued.

If your father died before 17 June 1956, the Hindu Succession Act does not govern his estate at all, and the old Hindu law applies. Daughters' rights under that law were much narrower, and the analysis turns on what happened to the property afterwards. Those cases need a careful look at old revenue and municipal records before anyone talks about shares.

Does a married daughter have the same share?

Yes. Section 6 makes no distinction between married and unmarried daughters, and courts have repeatedly rejected the argument that marriage ends a daughter's interest in her father's family property. She remains a coparcener in her father's family even after marriage, and her rights do not depend on where she lives or whether she visits.

Equally common is the argument that the dowry or wedding expenses were her share. They are not, unless she signed a registered relinquishment or release deed, or the property was partitioned with her share being given in some other form by a registered document. Gifts at marriage are her stridhan; they do not reduce her share in coparcenary property or her inheritance as a Class I heir.

Older law also restricted a female heir's right to ask for partition of the family dwelling house while male heirs lived in it. That restriction, Section 23 of the Hindu Succession Act, was deleted by the same 2005 amendment, so a daughter can now seek partition of the family home on the same terms as a son.

Can my brothers or father sell the property without my consent?

Each coparcener can deal with his or her own undivided interest only as the law allows, and nobody can sell a daughter's share without her consent except in limited situations. The karta, the manager of a joint family, can sell or mortgage joint family property for legal necessity or for the benefit of the estate, such as paying family debts, meeting medical costs or protecting the property. Such a transaction binds all coparceners, including daughters, if the necessity is shown. A sale without necessity, or a gift of coparcenary property, can be challenged.

Sales and gifts made before 20 December 2004 are protected by the proviso to Section 6(1) and are not reopened. Transactions after that date are open to challenge on the usual grounds. A buyer who purchased from the brothers alone, without checking whether daughters had an interest, takes the risk of a suit for partition and a declaration that the sale does not bind the daughter's share.

A mutation entry in the brothers' names alone does not transfer title. Mutation in municipal or revenue records is for collecting tax; it does not decide ownership. But it is often the first visible sign that the daughter's share is being denied, and the date on which she learnt of it can matter for limitation if she is treated as excluded. The process of objecting to a mutation is covered in property mutation in Delhi and UP.

I signed a release deed or an NOC. Is my share gone?

It depends on what you signed. A registered relinquishment deed or release deed, executed for coparcenary or inherited property, transfers your share to the others and binds you unless you can show fraud, coercion, undue influence or misrepresentation. A challenge has to be brought within three years of learning the facts that make it voidable, so a daughter who signed under pressure ten years ago and knew it at the time will usually find the challenge late.

An unregistered paper is different. An affidavit or a no-objection letter given to the MCD, the DDA or a bank for mutation, saying you have no objection to the property being recorded in your brother's name, does not by itself transfer ownership of immovable property. Courts treat such documents as evidence of conduct, and they can be used against you, but they are not a relinquishment of title. Read the exact words before assuming the worst.

When a daughter brings such papers to Advocate B.K. Singh, he looks first at three things: whether the document was registered, what it actually said about title as opposed to mutation, and whether she received anything in return. Those three points decide whether the claim is worth pursuing. For deeds signed under pressure, the remedies overlap with those in cancelling a gift deed.

Can a daughter be the karta of a joint family?

The Delhi High Court has accepted that the eldest coparcener can be the karta whether male or female, so an elder daughter can manage the joint family property and business. The reasoning follows from Section 6: if a daughter has the same rights and liabilities as a son, she cannot be excluded from managing the family estate only because she is a woman. The point is not settled by the Supreme Court in every detail, but families that run a Hindu Undivided Family for tax or business purposes should know it.

The same equality applies to liabilities. A daughter who is a coparcener shares the joint family's debts to the extent of her interest, just as a son does. The old doctrine that a son was bound to pay his father's personal debts out of his interest in the family property, the pious obligation, was abolished prospectively by Section 6(4), but debts incurred before 2005 can still be enforced against coparcenary property in some situations.

Is the daughter's share protected if a case is already pending?

Often, yes. A partition suit is not finished until the final decree is passed. The Supreme Court has held that a preliminary decree can be modified while final decree proceedings are pending to give effect to a change in the law, and Vineeta Sharma directed that pending cases be decided in accordance with it. A daughter who was left out of an older suit, or given a smaller share under the old law, should apply in the pending proceedings rather than file a separate suit.

Where a final decree has already been passed and has become final, the position is different; a completed partition by decree before 20 December 2004 is expressly saved. Decrees passed after that date but before Vineeta Sharma, in which the daughter was denied a share because her father died before 2005, raise harder questions, and the remedy depends on whether time for appeal or review remains. The general deadlines are in limitation periods for civil suits.

Agricultural land, other religions and state laws

Agricultural land is the main exception to the equality described above. In Delhi, succession to bhumidhari land is governed by the Delhi Land Reforms Act 1954, and in Uttar Pradesh by the UP Revenue Code 2006. Both have their own order of succession in which daughters have historically been placed behind sons or treated differently depending on marriage. The interaction of these revenue laws with the Hindu Succession Act after 2005 has been litigated, and the position should be checked against the current law and recent decisions before a claim is made.

Section 6 applies only to Hindus, Buddhists, Jains and Sikhs governed by Mitakshara law. A Muslim daughter's share is fixed by Muslim personal law, which generally gives a daughter half the share of a son, and there is no ancestral or coparcenary property in that system. Christian and Parsi daughters inherit under the Indian Succession Act 1925, with equal shares among children in most situations. The procedure for claiming a share through partition is the same for all.

Mistakes daughters and families make

• Calling all family property ancestral. Property inherited from a father after 1956 is usually separate property. The daughter's claim is then one of inheritance on intestacy, not by birth.
• Assuming marriage ended the share. It did not. Only a registered relinquishment, a saved partition or a valid transfer does.
• Signing a release for mutation without reading it. A no-objection letter for mutation is very different from a registered release deed. Read the words and keep a copy.
• Waiting after a clear denial. Once a brother sells the property as his own or tells you in writing that you have no share, the 12-year period for an excluded co-owner begins to run.
• Not checking for a will. A will can carry the father's own coparcenary share and all his self-acquired property. Ask early whether one exists and whether it has been probated.
• Filing without the buyer. If any part has been sold, the buyer must be a party, or the decree will not bind the purchased portion.

Papers a daughter should gather before claiming her share

What to do this week

• Find out how the property first came into the family and when.
• Ask for, or obtain by inspection, any will left by your father.
• Check whether a registered partition deed exists, and its date.
• Collect any paper you signed about the property, including mutation NOCs.
• Get the current mutation and tax records for each property.
• Note the date you first learnt your share was being denied.
• Check whether any part has been sold or mortgaged, and to whom.
• If a sale is imminent, take advice on a notice to the buyer and an injunction.

Talking to your family before going to court

Many of these disputes are resolved once the family understands the law. Brothers who believe the 2005 amendment does not apply because the father died earlier often change their position when they see the Vineeta Sharma judgment. A carefully worded legal notice that sets out the property, the basis of the share and the arithmetic does more than an angry phone call, and it records your claim.

If that fails, a partition suit with an injunction protects the share while the dispute is decided. Settlement by a cash payment for the share, through mediation or directly, is common and often sensible, especially where the property cannot be divided. A daughter should value her share on the market figure for the whole property, not on a figure suggested by those who will keep it.

If you want your papers read before you raise the claim, the team of Advocate B.K. Singh can tell you whether the property is coparcenary, what your share works out to and whether any deadline is close. You can write to us through the enquiry page. More on property suits in Delhi courts is on our civil and property lawyer in Delhi page and the wider civil law practice page.