Indian women can now reclaim property even in some settled cases — 8 questions that explain the possibilities

• Women had equal rights to inherit an ancestral property in India since 2005 but the latest Supreme Court verdict made it retrospectively applicable.
  
• This may allow aggrieved Hindu women to challenge old disputes that have been settled in specific situations, subject to certain conditions.
  
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In a landmark ruling earlier this month, a Supreme Court bench, headed by Justice Arun Mishra and comprising Justices S Abdul Nazeer and MR Shah, stated that a daughter’s right to be a joint heir to the ancestral property is by birth.

This development is important because, while women have had equal rights to inherit property in India under the Hindu Succession Act since 2005 — the latest Supreme Court verdict made it retrospectively applicable. This may allow aggrieved Hindu women to challenge old disputes that have been settled in specific situations.

The Hindu Succession Act applies to Hindus, Buddhists, Jains and Sikhs in India. Business Insider spoke to lawyers to understand the implications of the Supreme Court ruling.

1. How is it different from the one judgment after the 2005 amendment?
The Supreme Court ruling has categorically held that the 2005 Amendment would apply to any daughter who was living at the time of passing of the Amendment. Thus, every daughter would be considered a coparcener — a person who enjoys equal rights in the share of the ancestral property — just like sons. This is irrespective of whether the daughter’s father was living or deceased when the 2005 Amendment was passed, according to Bijal Ajinkya, Partner, Khaitan & Co.

Previous judgments by the Supreme Court such as Prakash vs Phulavati (2016) and Danamma (2018) have given conflicting decisions in this regard. The Supreme Court decision has overruled Prakash vs Phulavati in its entirety and Danamma to the extent that it conflicts with the present ruling, Ajinkya added.

2. Can cases whose judgment has been passed already before 2005 opened?
If a final order of partition has been passed by the court, that case cannot be reopened. However, if only a preliminary order has been passed, the case can be reopened

Similarly, if prior to 2005 if partition (or family settlement) through a registered deed has taken place and been implemented, the case cannot be reopened. In no case is there an automatic reopening and the earlier transaction would need to be challenged by the female coparcener in court.

3. In what situation can women reopen a case?
In order to reopen a case of the partition (or family settlement) which has taken place after 2005, a woman would need to challenge the partition or settlement deed and likely prove that she was not acknowledged as a coparcener or denied her legitimate share in the joint family property. Further, if duress on her part can be proved, her consent to any deed or action can be made void. Whether a condition or duress existed at the time would need to be examined based on the facts, Ajinkya said.

According to Sonam Chandwani, Managing Partner, KS Legal & Associates, the partition is irrevocable in nature. However, for the purposes of equity, the law permits reopening the partition already affected in a few instances, including fraud, adopted son, minor or disqualified coparcener. The rationale behind is to prevent gross injustice to the member of the family.

3. What is the process to reopen cases?
If the larger family does not want to reopen the case, the document or decree through which the partition or family settlement has been effected would need to be challenged in court, Ajinkya said. He further added that in case the larger family is amenable to reopening the case, a family settlement deed can be executed among the family members to redistribute the assets which were distributed through a previous deed – this should be adequately stamped or registered.

5. Can women challenge property distribution where they have already accepted a settlement?
If the property distribution took place before 2005 through a valid, binding partition or family settlement — like through registered deed or final decree of court — the woman has no right since she was not a coparcener.

If the property distribution took place after 2005, the woman has a right as a coparcener and would be able to challenge it. However, if she also consented to the deed and was acknowledged as a coparcener, the deed would ordinarily be binding on her irrespective of whether or not she received a share, Ajinkya explained.

6. What happens in 'Haq Tyaag' cases where women 'voluntarily' give up rights to the property because father or brother paid the dowry?
Mere payment of dowry by father or brother does not preclude the woman from claiming her rights in the joint family property. However, if the ‘Haq tyaag’ has taken place through a registered deed executed by the woman where she has voluntarily given up her rights to the joint family property, no action can be taken by the woman, Ajinkya said.

7. What happens in a case where the woman is an adopted child?
Generally, the rights of an adopted child — whether son or daughter— are the same as that of a natural-born child. However, while the Supreme Court has emphasized that rights to coparcenary property may be conferred by adoption as well, it has not been made clear whether an adopted daughter would have the same rights as a natural-born daughter. This issue is also not judicially tested, Ajinkya said.

8. If there is no paperwork and the earlier the settlement was just verbal, then is it straightaway liable to be reopened?
The Supreme Court has held that claims of an oral partition are to be rejected outright. Those who claim that an oral partition took place prior to the 2005 amendment must provide substantial documentary evidence of the partition having been implemented, including showing public documents to this effect. However, there is no automatic reopening and the earlier transaction would need to be challenged in court, Ajinkya said.


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