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
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.