Daugh­ters’ rights in Hindu suc­ces­sion

A Hindu wo­man or girl will have equal prop­erty rights along with other male rel­a­tives for any par­ti­tion made in in­tes­tate suc­ces­sion af­ter Septem­ber 2005

HT Estates - - Property & To-let Classifieds - Vivek Kohli

new flat at another location (I have taken a home loan of R15 lakh). Is it pos­si­ble to buy new prop­erty by sell­ing an ex­ist­ing one? What is the pro­ce­dures and tax im­pli­ca­tions?

— Su­raj Mehta

The Hindu Suc­ces­sion Act, 1956, is an act which cod­i­fies and gov­erns the law re­lat­ing to in­tes­tate suc­ces­sion amongst Hin­dus. This act brought about many sig­nif­i­cant changes in the clas­si­cal law of suc­ces­sion amongst Hin­dus. How­ever, it had one ma­jor draw­back – it re­tained the an­cient con­cept of Mi­tak­shara co­parce­nary, which ex­clu­sively al­lows males to be­come mem­bers of a mi­tak­shara co­parce­nary. (Mi­tak­shara, one of the two schools of Hindu Law, dic­tated that a son, son’s son, great grand­son and great great grand­son had a right by birth to an­ces­tral prop­erty or prop­er­ties be­long­ing to the fa­ther and that their in­ter­est was equal to that of the fa­ther. The group hav­ing this right was termed a co­parce­nary). There­fore, fe­males did not stand to in­herit an­ces­tral prop­erty un­like their male coun­ter­parts. It was felt by the leg­is­la­ture that non-in­clu­sion of daugh­ters was re­sult­ing in dis­crim­i­na­tion against women. Gen­der dis­crim­i­na­tion in law stated amount. This amount men­tioned in the cer­tifi­cate is typ­i­cally cal­cu­lated as on a fu­ture date, to en­able time for the buyer to ar­range for the pay­ment.

If you sell a house within a pe­riod of three years from the date of tak­ing pos­ses­sion, the dif­fer­ence be­tween the cost price and the net price shall be treated as short-term cap­i­tal gains and will be as your nor­mal in­come and taxed at the rates ap­pli­ca­ble.

In case you sell the house pur­chased within a pe­riod of five years from the date on which it was pur­chased with a loan and you had availed the tax ben­e­fits un­der Sec­tion 80C in re­spect of against daugh­ters meant de­nial of the fun­da­men­tal right of equal­ity to women, as en­vi­sioned by the Con­sti­tu­tion of In­dia.

Nec­es­sary changes in the law were then brought about by the Hindu Suc­ces­sion (Amend­ment) Act, 2005 which came into force on Septem­ber 9, 2005 (Amend­ment Act). Un­der the amend­ment act, daugh­ters were ac­corded the sta­tus of mem­bers of mi­tak­shara co­parce­nary. With this amend­ment, daugh­ters have been given rights of in­her­i­tance in mi­tak­shara co­parce­nary prop­erty, thus en­sur­ing that both sons’ and daugh­ters’ rights of in­her­i­tance are at par.

The amend­ment act lays down that in a joint Hindu fam­ily gov­erned by Mi­tak­shara law, the daugh­ter of a co­parcener shall by birth, be­come a co­parcener in her own right. She will also have the same rights and li­a­bil­i­ties in the co­parce­nary prop­erty as a son. Thus, on and from Septem­ber 9, 2005, a daugh­ter is en­ti­tled to a share in Mi­tak­shara co­parce­nary prop­erty and is recog­nised a co­parcener. Also, where a Hindu dies af­ter the com­mence­ment of the amend­ment act, his in­ter­est in the Mi­tak­shara co­parce­nary prop­erty shall be deemed to have been di­vided cap­i­tal por­tion of loan re­pay­ment, the de­duc­tions al­lowed in re­spect of such prop­erty will be treated as in­come of the year in which this house is sold. Please note that there is no such pro­vi­sion of treat­ing the in­ter­est ben­e­fits claimed ear­lier as in­come of a later year in which such prop­erty is sold. My wife is cur­rently a house­wife but may take up a job in the fu­ture. Can I add my wife’s name in the loan ap­pli­ca­tion some­time in the fu­ture and can we both get tax ben­e­fits?

— Ganesh Shetty In case your wife is not a coowner to the said prop­erty, she can­not claim tax bene- as if a par­ti­tion had taken place, where a daugh­ter is al­lot­ted the same share as a son.

These rights con­ferred on daugh­ters in Mi­tak­shara co­parce­nary prop­erty are ab­so­lute, ex­cept un­der two spe­cific cir­cum­stances — (a) where the dis­po­si­tion or alien­ation in­clud­ing any par­ti­tion of prop­erty has taken place be­fore De­cem­ber 20, 2004; and (b) where tes­ta­men­tary dis­po­si­tion of prop­erty (that is, un­der a will) has been made be­fore De­cem­ber 20, 2004. These statu­tory pro­vi­sions and prin­ci­ples were re­cently re­it­er­ated by the Supreme Court in the case of Gan­duri Kotesh­waramma and Another vs Chakiri Yanadi and Another, de­cided on Oc­to­ber 12, 2011.

Re­gard­ing in­her­i­tance of prop­erty which is owned by a Hindu wo­man, in the ab­sence of her will, suc­ces­sion of her prop­erty shall be gov­erned by Hindu Suc­ces­sion Act, 1956.

If a Hindu wo­man leaves be­hind a will, suc­ces­sion of her prop­erty shall be in ac­cor­dance with her de­sire stated in the will. fits. To add her name as a prop­erty co-owner later on will have stamp duty im­pli­ca­tions. To add her name as a loan co-bor­rower will also en­tail closing the cur­rent loan where you may be the sole owner and bor­rower and file a fresh loan ap­pli­ca­tion. How­ever, if you have not yet pur­chased the prop­erty and availed the loan you can still make your wife a co-owner and a co-bor­rower though she is not earn­ing now so that she can claim the tax ben­e­fits once she starts earn­ing. Yes, both of you can claim tax ben­e­fits.

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