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Does daughter have right to family property after receiving dowry?

  • Published
    23rd Mar, 2023
Context

Recently, the Goa High court gave a Judgement regarding the daughter’s right to the family property in Terezinha Martins David vs. Miguel Guarda Rosario Martins & Others.

Background
  • In Prakash v Phulwati (2015), a two-judge Bench headed by Justice A K Goel held that the benefit of the 2005 amendment could be granted only to “living daughters of living coparceners” as on September 9, 2005 (the date when the amendment came into force).
  • In February 2018, contrary to the 2015 ruling, a two-judge Bench headed by Justice A K Sikri held that the share of a father who died in 2001 will also pass to his daughters as coparceners during the partition of the property as per the 2005 law.
About the Case:
  • The petitioner's brothers asserted that all four sisters received "appropriate dowries" at the time of their marriages, after which three of them established the partnership.
  • They argued that the suit shop and the land underneath it were added to the partnership and became a part of the company's assets.
  • They claimed that as a result, neither the petitioner nor her three sisters had any claim to the suit shop.
  • First appellate court upheld the dismissal of the daughter’s suit, set aside the decree in the counterclaim.

Court’s Judgement:

  • A daughter’s right to family property will not extinguish even if dowry was provided to her at the time of marriage.
  • The mentioned that there is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughter that does not mean that the daughters cease to have any right in the family property.
  • The court observed that although the present suit was filed by the petitioner after four years of instituting the transfer deed, the daughter came to know about it only six weeks prior to the institution of the suit.

What provisions of the Portuguese Civil Code come into the picture?

  • Article 1565 of the Code provides that the parents or grandparents shall not be entitled to sell or mortgage to children or grandchildren if the other children or grandchildren do not consent to the sale or mortgage.
  • Article 2177 of the Code provides that a co-owner may not, however, dispose of any specific part of the common property unless the same is allotted to him in partition; and the transfer of the right which he has to the share which belongs to him may be restricted in terms of the law.

The Hindu Succession Act, 2005:

  • The Hindu Succession (Amendment) Act, 2005 granted equal rights to women.
  • Women were recognised as coparceners or joint legal heirs for partition arising from 2005.
  • Section 6 of the Act was amended that year to make a daughter of a coparcener also a coparcener by birth “in her own right in the same manner as the son”.
  • The law also gave the daughter the same rights and liabilities “in the coparcenary property as she would have had if she had been a son”.
  • The law applies to ancestral property and to intestate succession in personal property — where succession happens as per law and not through a will.

The 174th Law Commission Report had also recommended this reform in Hindu succession law.

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