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Pushpalatha N.V vs. V. Padma (2010)

August 20, 2024

This article is written by Shenbaga Seeralan S. This article elaborates on the case Pushpalatha N.V vs. V. Padma (2010) which is related to a partition dispute of an intestate property. The judgement of this case answers a very important question concerning the interest in coparcenary property. This article provides an in-depth analysis of the factual bedrock and the legal standpoint along with the critical examination of the circumstance.

Table of Contents

Introduction

The claim of ownership of a property gradually started after the disintegration of individual rights from the community rights. More precisely when the need to legalise the structure of family came into the picture, then the importance of property grew multifold. The American legal scholar and philosopher Nathan Roscoe Pound in his theory of social engineering mentioned the nature of property and its attachment to a group of people. He pointed out that the earliest claim associated with a property was made by a group of people and not by an individual. The form of control over a land changed from communal holding to individual right after the inception of rule of a king. The English jurist Edward Jenks who was a forerunner in propounding sociological aspect of property noted that property is associated with both individual and community rights. He stressed on the fact that no one can be allowed to take disproportionate rights over a property, rather he pointed out that the usage should be confined by the rule of the land and the welfare of the community.

Property can be categorised into various types such as tangible and intangible, real and personal, corporeal and incorporeal, movable and immovable. The Indian legal machinery by means of various enactments and policies have laid a quasi flexible mechanism to determine the rights of property of an individual. The rights devolved upon an individual are also intertwined with the nature of inheritance of the property and the rights of other claimants of the property. This article predominantly deals with the case of Pushpalatha N.V vs. V. Padma and Ors (2010), concerning the rights over the immovable hereditary properties associated with a family. The question of gender rights over the property, the method of inheritance and the share of property among the coparceners are to be examined in detail by the means of this article.

Details of the case

Case name: Pushpalatha N.V vs. V. Padma and Ors (2010), (hereinafter referred to as ‘the case’)

Appellant/ Plaintiff: Pushpalatha N.V

Respondents/Defendants: V. Padma and others

Case no: Regular First Appeal No. 326 of 2004

Equivalent Citation: AIR 2010 Kant 124

Bench: Justice N. Kumar and Justice A.N Venugopal Gowda

Court: Karnataka High Court

Important statutes and relevant provisions involved:

The Hindu Succession Act, 1956 (hereinafter referred to as ‘HS Act’) : Section 8 and Section 6
The Hindu Succession (Amendment) Act, 2005 : Section 6, 6(1), 6(2), 6(3) and 6(5)
The General Clauses Act, 1897 (hereinafter referred to as ‘GC Act’) : Section 6
The Constitution of India : Article 245, 254, 254(1) and 254(2)

Facts of the case

The main issue of the suit revolved around the five scheduled properties scheduled as A, B, C, D and E. The father of the plaintiff Sri D.N Vasantha Kumar was the owner of the suit property. He acquired this property from his father, the late Mr. D.K. Nabhirajaiah. The ancestral property was bestowed upon Sri D.N. Vasantha Kumar by the means of evidencing a registered deed of partition dated 29 March, 1967. This way, the father of the plaintiff received the said property to his branch of the Hindu Undivided Family.

Consequently, Sri D.N. Vasantha Kumar became the karta of the suit property and his two sons became the coparceners. In course of time the plaintiff’s father died intestate on 31 December, 1984 leaving behind his wife V. Padma, who is the first defendant; two daughters (Pushpalatha N.V, the plaintiff and second daughter, the second defendant) and the two sons who are the defendants 3 and 4. The scheduled properties C and D were transferred to the tillers of the land under the Karnataka Land Reforms Act, 1961. According to the Hindu family law, the defendants 3 and 4 who are also the coparceners of ancestral property got 2/3rd of the share, the remaining 1/3rd of the share was divided between the plaintiff and defendants 1 to 4. On this basis, the plaintiff got 1/20th of the share.

Aggrieved by this decision the first daughter of the late Sri D.N Vasantha Kumar filed a suit for declaration before the Trial Court. She pleaded that on the death of her father, all the children had succeeded to his estate. She claimed that she is entitled to 1/5th of the share in properties, equitably separated among the mother and four children. She also mentioned in her pleadings that the scheduled property ‘A’ was earning a rent of one thousand rupees and it was collected by her mother, who is the first defendant. She demanded her share in the mesne profit from the income of the scheduled property ‘A’. The defendants were served with summons, who in turn filled a detailed written statement enumerating their claims and rights. The plaintiff presented herself as witness and presented three documents as evidence in support of her claim. Similarly, the defendants presented Sri N.V. Tej Kumar the third defendant as witness and no document was produced by them.

The Trial Court framed the issues related to this case and tried to address each issue individually. The following issues are framed.

Whether the plaintiff proved that D.V Vasantha Kumar died intestate leaving behind the properties?
Whether the plaintiff proved her claim of 1/5th share of the scheduled properties?
Whether the plaintiff proved that she is entitled to mesne profit from scheduled property ‘A’ ?
Whether the plaintiff is entitled to any other reliefs?

The Trial Court on examination and thorough inspection of the oral and documentary evidence provided its judgement.

Judgement of the Trial Court

The Trial Court while adjudicating the aforesaid suit assured that the karta of the Hindu Undivided Family died intestate. On the examination of the witnesses and documents, the judge confirmed that the property was an ancestral property so the male lineage would become direct coparceners of the property. Hence, in the scheduled ancestral property according to Section 6 of the HS Act,1956 the late Mr. D.N Vasantha Kumar received 1/4th share. The plaintiff’s father left behind his wife, two daughters and two sons. Therefore, each shareholder would get 1/5th share of the 1/4th share of the late Mr. D.N Vasantha Kumar. Thus, the plaintiff was entitled for 1/20th of the share in ancestral property. Whereas, the two sons of the karta were already coparceners to the ancestral property, they would receive 1/4th the share of the property apart from 1/5th share in 1/4th share of his father Mr. D.N Vasatha Kumar. Thus, the Trial Court decreed that the share of 1/20th share in properties A, B and E was justifiable.

While dealing with the question of share in the mesne profit from the rent of scheduled property A, the court examined the status of the property. It was contested by the respondents that two portions in the said property were rented out and eviction proceedings were carried on. A total sum of 1,147 rupees was collected as the rent from those portions by the first defendant. The court held that the plaintiff was entitled to the share in the mesne profit, however, the quantification of the shares was to be determined by a separate enquiry. Thus the Trial Court decreed the suit partly in favour of the plaintiff on 17 January, 2004.

In the course of time, an amendment to the HS Act was passed in the year 2005 named as the Hindu Succession (Amendment) Act, 2005, which conferred the rights over coparcenary property to a daughter of the coparcener, equivalent to a male heir. Aggrieved by the order of the Trial Court and influenced by the latest amendment, the plaintiff opted for an appeal before the Karnataka High Court.

Issues raised in the case

The issues presented before the High Court in the appeal made by the plaintiff against the order bestowed by the Trial Court were

What are the rights acquired by the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara Law?
What are the rights of a married daughter over a coparcenary property?
Is Section 6 of the Hindu Succession (Amendment) Act, 2005 applicable to the partitions already made?
Does the amendment have a retrospective effect?
What will be the effect of rights under Section 6 of the HS Act, which was repealed?

Arguments of the parties

The counsels for both the appellant and the defendants put forward their arguments before the two-judge bench of the Karnataka High Court.

Arguments by the appellants

The learned counsel Mr. L. Govindraj appearing for the appellant laid the reliance on the recent amendment made in the HS Act in the year 2005. Prior to the amendment, only the grandsons were considered as the coparceners to the property belonging to the grandfather. This was a gender-restrictive provision that posed a huge threat to the well-being of the female members of the Hindu Undivided Family. By amending the Section 6 of the HS Act, the parliament paved the way for a more balanced and gender-neutral approach in relation to lineage to the ancestral property. The amendment granted equal rights to the granddaughters in par with the grandsons while sharing the ancestral property. This right was conferred to a woman by birth. This amendment was in congruence with Articles 14, 15 and 21 of the Constitution of India. Therefore, the learned counsel argued that the plaintiff was entitled to 1/5th share in the scheduled properties.

In relation to the mesne profit received from the scheduled property ‘A’, the rental amount was received by the defendant 1 (mother of appellant). It was contested by the counsel that the appellant had the right to receive the due share from the rental amount received from any ancestral property, with or without considering the amount. Therefore, it was pleaded that the 1/5th share of the rental amount was also applicable in the rental amount received from the scheduled property ‘A’. The learned counsel also argued that the suit properties were not partitioned before 20 December, 2004 and so to envisage the vision of the amendment made, the newly added provisions should have a retrospective effect on the partitions made. Thereby, it was pleaded that the decision of the Trial Court should be corrected so that the plaintiff would receive her due share in the ancestral property.

Arguments by the respondents

The learned counsel Mr. R.B. Sadashivappa appeared for the respondents. While countering the argument of the appellant counsel, the learned counsel quoted the phrasing of the amended proviso. The amendment clearly mentioned that the daughters of a coparcener should be treated as a coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. The counsel argued that the succession opened on the death of the karta Mr. D.N. Vasantha Kumar, which happened prior to the 2005 amendment. Therefore, the share entitled to each member of the family was determined based on that reference date. It was put forward that from this phrasing of the amendment, it was clear that the sons of the coparcener were vested with 2/4th the share of ancestral property along with the share in share of their father’s property. The ancestral property was shared among the coparceners, which included the sons of Mr. R.B. Sadashivappa, so the property was demarcated between Mr. Sadashivappa, his two sons and his brother.

The counsel strongly opposed the idea that the newly amended section should have a retrospective effect. A vested right cannot be scrapped by the means of retrospection. Therefore, the learned counsel contested that the provision on the date of succession should only be taken into account and the new law does not apply to the pending appeal.

In the matter of mesne profit from the scheduled property ‘A’ it was argued that defendant 1 is using the rental amount for her medical and legal expenses occurring in eviction proceedings. In addition to that it was noted that the plaintiff would receive money from defendant 1 for personal and family needs which was never accounted for. So, keeping these facts in mind it was also contested that the mesne profit share should not be granted for the plaintiff. The learned counsel finally prayed for the dismissal of the appeal and to ascertain the judgement of the Trial Court in regards to the share in the scheduled properties.

Laws discussed in Pushpalatha N.V vs. V. Padma (2010)

This case involves provisions from the HS Act and the Constitution of India which forms the underlying base of the dispute.

Section 6 of the HS Act

The provision enables the devolution of interest in the coparcenary properties to the male lineage of the family. This lineage includes three consecutive generations, This right was vested upon the male members by birth and was synonymous to the Mitakshara law. This is a right devolved upon the coparcener on birth. This provision not only guarantees the rights but also subjects the coparceners with the liabilities associated with the property. The Sub-section (1) of section 6 of the Amendment Act grants the right of being a coparcener to the daughter of the coparcener in the Hindu Undivided Family governed by the Mitakshara law on and from the commencement of the amendment Act. The right is conferred provided that the daughter is a biological daughter of the coparcener. She would be bestowed upon the rights on the coparcenary property as she would have if she had been a son. The provision also inflicts some liabilities to the daughter in respect of the coparcenary property. However, the provision does not enable the right if there was a valid testimony in order that had taken place before 20 December, 2004.

The Sub-section (2) of Section 6 of the amendment act entitles the female Hindu member of the family to be the coparcenary owner of the ancestral property according to the Sub-section (1) of Section 6 of the HS Act. The property acquired by the female member of a Hindu Undivided Family can be disposed of by her through a testament.

The Sub-section (3) of Section 6 of the amendment act enables the coparcenary property to be devolved upon the method of testamentary or intestate succession and not through survivorship ideals. This occurs in the event of the death of the karta after the commencement of the Hindu Succession (Amendment) Act, 2005. This provision also mandates that the share a male and a female offspring receive should be equal. If the daughter or the son is deceased then their respective share shall be devolved upon their surviving children. The share of the predeceased child of the predeceased son or daughter shall devolve upon the surviving child of the predeceased child. For example, there is a family of six, consisting of a father (Karta), one son, one daughter, one son-in-law, one daughter-in-law and a granddaughter. If the Karta dies without a will then the property belonging to him will devolve upon the class I heirs, i.e., the son , daughter and the granddaughter through intestate succession.

The Sub-section (5) of Section 6 of the amendment act explicitly mentions that nothing contained in the Section 6 of the HS Act shall affect the partition made before 20 December, 2004. It is also worth noting that partition means any execution of a deed duly registered under the Registration Act, 1908 or through a decree of court.

Article 245 of the Indian Constitution

The article enables the Parliament to make laws to the whole of India and the Legislature of the State can make laws for the whole of the State. However, the laws made by the Parliament shall not be held invalid by the State Legislature.

Article 254 of the Indian Constitution

The provision deals with the inconsistency in the laws made by the Parliament and the laws made by the State Legislatures. This is an enabling provision. Article 254(1) upholds the strong union nature of the Indian Constitution. When a law passed by the Parliament contradicts with the law passed by the State Legislature, then the law passed by the Parliament shall prevail, provided that the matter lies in the concurrent list. Article 254(2) provides a mechanism for the State Legislature to maintain its status quo. When the State Legislature enacts a law in one of the matters in the concurrent list and it contradicts with the law made by the Parliament, then the State can reserve the law for the consideration of the President and when the assent is given by the President then such law shall be applied within the territory of the State.

Judgement in Pushpalatha N.V vs. V. Padma (2010)

The bench of the Karnataka High Court while adjudicating the case had framed prominent factors that are to be addressed. Those include

What is the Hindu traditional law says about the partition of ancestral property in case of succession?
What is the situation prior to amendment in regards to succession of ancestral property to the female member of the Hindu Undivided Family?
What was the defect in the previous law?
What remedy did the parliament by the means of amendment sought for and what was the reason for that amendment?

Obligated to answer all these questions, the bench intricately took cognisance of all the documentary evidence, the written pleadings and the arguments by the learned counsels representing both the parties. The bench took note of various precedents before delivering a judgement. The two-judge bench allowed the appeal sought by the plaintiff. The bench on serious inspection set aside the judgement and decree of the Trial Court. The plaintiff was provided with the relief, by providing the share of 6/25th of the scheduled property A, B and E.

The court declared that the marital status of the daughter does not take away the coparcenary right that she was conferred with by her birth. The court accepted the findings of the Trial Court that the scheduled properties C and D are transferred to tillers and are not disputed by the parties. The court also held that the plaintiff was entitled to the mesne profile in the form of rent from the scheduled property ‘A’, however, the share was to be determined in the final decree proceeding. The court thereby adjudicated the case and necessitated the parties to bear the costs.

Rationale behind the judgement

The High Court of Karnataka meticulously looked into various issues framed and diligently tried to answer every question before arriving at a conclusion. This case is dealt not only as an appeal to a civil suit but also as an opportunity to address the issue of fundamental rights and gender inequality.

Ideas through schools of customary law

The stratification of ancestral property among the members of the family is determined by various factors. It is controlled by testament registered in advance by the karta of the family or through succession based on the rule of land or through a statutory order. Though the succession is regulated by the HS Act, the nature of succession prior to the Act was governed by various schools of family law. These are also called customary law and they are distinct over a territorial boundary.

The Dayabhaga school was predominant in the areas of Bengal. The Mayukha school was influencing the regions of Bombay, Konkan and Gujarat. The Nambudri school had strongholds in the regions of Kerala and Maharashtra. The Mitakshara school was popular in other regions of the sub-continent. This diversity is based on the dynasty ruled over that particular region and the traditions adapted thereafter. The two schools which greatly influenced the Hindus were the Dayabhaga school, which followed religious supremacy and the second and most prominent school was Mitakshara which followed the principle of uniform ancestors.

The Mitakshara school held the dominance over the customary family law of the land except in the States where Dayabhaga ideology was prevalent as it touched upon various aspects of the family. One among them was the devolution of property. This school proposed two methods by which the Hindu family property is devolved. One is through survivorship and the other one is through succession. The MItakshara school upheld the male dominance of the society by providing the sons of the lineage the right to acquire the family property. The school does not provide the female any right on family property. The coparcenary right is endowed on the son, the grandson and the great grandson.

It is also worth noting that the share of each male member is reduced upon the birth of a new son in the family as the Mitakshara law has the principle of survivorship. Whereas, the Mayukha school has a different concept. The daughter in the family has the absolute right over the family property. On the account of this custom, when a Hindu father who follows Mayukha law dies, the daughter takes the right to property and passes it on to her heirs as stridhana.

Laws before the Hindu Succession Act, 1956

The first succession law was passed during the British era, it was the Hindu Law of Inheritance Act, 1929. This law provided inheritance over the family property to the female heirs including son’s daughter, daughter’s daughter and sister. The next legislation in this regard was the Hindu Women’s Right to Property Act, 1937. The most important outcome of this law was granting succession rights to the widow. The share vested on the widow is equivalent to the share of the son. However, the widow is entitled to only limited rights in the property of the deceased husband and the widow cannot become a coparcener of the family property. She was vested with the right to claim partition. The law allowed the daughter neither to claim for inheritance nor succession.

The rights of women were also highlighted in the Constitution of India. The framers of the Constitution were diligent in clearing the injustice directed towards the women. Through various provisions the legislators ensured the equal status of women in the society. Article 14 of the Constitution ensured that the law of the land treats the women equally and provides them with equal protection before law. Though Article 15(2) of the Constitution restricts the State against discrimination on the basis of gender in public and government-aided facilities, the right to equality can be surpassed to create special provision for women and children under Article 15(3) of the Constitution. It is worth noting that Article 39(a) directs the State to secure equal opportunity to both men and women to have adequate means of livelihood.

Principles followed in the Hindu Succession Act, 1956

The HS Act was passed on 17 June, 1956 to regularise the succession among Hindus, Buddhists, Jains and Sikhs. The Act adopted the principles of Mitakshara school of law in the Section 6. The Act provided limited ownership rights to the women of the family. Section 14 of the HS Act provided that any property held by the Hindu female shall be her absolute property and she is entitled to give her property through executing an instrument or as a gift. Similarly, when a Hindu male dies intestate, the property is equally shared among the male and female heirs, as the female heirs are also classified as class 1 heirs under Section 10 of the HS Act. Provided that, the female heirs are not provided with the coparcenary ability in the property. So, the HS Act maintained the position as established by the Mitakshara law. The Section 6 of the HS Act gave the female descendants the right to property through testament or intestate succession.

The class 1 segregation also affected the devolution of property based on the marital status of the women. Apart from denying the coparcenary rights the bias was also existent between a married daughter and an unmarried daughter and also the one between the married daughter and a married son. This is a case of serious inequality as well as the denial of fundamental rights which went unnoticed for decades. Article 13 of the Constitution mandates that any law that is inconsistent with the fundamental rights guaranteed by the Constitution shall be declared void. The main reason for the amendment is to abridge this inequality that was prevalent for a long period of time and provide the women of the Hindu family a just and equal right in the ancestral property by delegating a coparcenary status.

Coparcenary rights of women through amendment

The amendment to the HS Act was passed on 9 September, 2005 and it aimed at providing equal coparcenary status to women over ancestral property. The Section 6 of the Hindu Succession (Amendment) Act, 2005 deals with the devolution of interest in coparcenary property. The provision firmly guarantees the daughter of the coparcener shall be given equal rights by birth similar to that of a son over a coparcenary property. It is worth noting that the amendment provided coparcenary rights to the daughter of the coparcener and not to any other female members of the Hindu Undivided Family. The other female members who are classified as class 1 or class 2 heirs get a share through testament or succession but it is only the daughter of the coparcener who is entitled to be the coparcener.

By the means of the amendment the daughter of the coparcener is bestowed with two rights. One is equality in status with the son of the coparcener and the other is equal rights in coparcenary property similar to that of a son. The daughter has been provided with the right to become a coparcener by birth , which not only guarantees the social status but also her monetary prospects. Along with the rights the daughter of a coparcener is vested with the liabilities associated with the coparcenary property. The amendment was carefully phrased showcasing the rights to be conferred upon the daughter on and from the commencement of the Amendment Act. If this phrasing was not highlighted then the HS Act would have become obsolete. The limited rights conferred to the daughter of the coparcener was enhanced into absolute right through the amendment. It is also worth noting that the amendment mandates that the daughter was born after 17 June, 1956 which is the date of enactment of the HS Act.

Thus, the amendment Act provided the coparcenary right over the ancestral property to the daughter of the coparcener as her birthright from the commencement of the amendment Act as well as ensured that the right to succession to be conferred upon her by the HS Act. However, the Parliament while making the amendment did not forget the fact that the retroactive effect of the amendment shall affect the transactions made in the last few decades. To ensure this contradiction a proviso was added to the Sub-section (1) of Section 6 of the Hindu Succession (Amendment) Act, 2005. The proviso states that any disposition including partition or testamentary action taken place before 20 December, 2004 shall not be affected by the contents of Section 6 of the amendment Act. Among the methods of disposition the testamentary disposition is carried out under Section 30 of the HS Act.

Rule of partition under the HS Act

The HS Act gave a very narrow definition of the term partition. It states any disposition executed by the means of deed under the Indian Registration Act, 1908, or appropriated through a decree of the court. From this definition, it is clear that an oral partition, memorandum or agreement do not affect the right of the daughter as a coparcener. Whereas, when a decree issued by a court is concerned the finality of the decree is in question. The preliminary decree is one which demarcates the rights of the parties, and which can be appealed in an appellate court. The appellate court continues the suit and provides the final decree, which may be the continuation or reversal of the preliminary decree. The final decree is considered as a partition which will be in accordance with the HS Act, providing coparcenary rights to the daughter of the coparcener.

In the case of Phoolchand and Anr vs. Gopal Lal (1967), it was held that there may be multiple preliminary decrees passed by the Trial Court and the Civil Procedure Code,1908 does not restrict the passage of the second preliminary decree. The ultimate need of a decree was to finalise the share of parties based on the present value. So, unless a final decree is passed there is no restriction on updation of the earlier decrees passed. Hence, through this judgement, it can be observed that the preliminary decree cannot be considered as absolute partition.

In the case of S. Narayana Reddy and Ors vs. S. Sai Reddy(1990), the Andhra High Court held that in a Hindu Undivided Family, the partition is carried out through written or oral settlement by the parties or through the intervention of the court. The preliminary decree passed by the court highlights the rights of the parties whereas the final decree determines the shares of all immovable parties and allots specific shares to individual parties. Therefore, the final decree is considered to be absolute and without a final decree the right of the daughter as a coparcener cannot be deprived.

In the case at hand the partition was affected by the decree passed by the Trial Court on 20 December, 2004, which cannot be considered as a final decree. Hence, that cannot be considered as a final and absolute partition. The coparcenary rights of the daughter of the coparcener can be deprived only when an absolute partition is carried out. The effect of the decree passed by the Trial Court cannot overrule the amended provisions of the Section 6 of the HS Act.

Right of a married daughter

The States of Karnataka, Maharashtra, Andhra Pradesh and Tamil Nadu legislated an amendment to the HS Act prior to the 2005 amendment, which granted coparcenary rights over property to the unmarried daughter equal to that of the son. However, it restricted the married daughters from availing those rights, since the legislators did not want to over correct the customary laws. The customary laws prevented married daughters from having property rights to preserve the family wealth from being transferred. When a son of the coparcener was married, he was still entitled to enjoy the coparcenary status whereas a daughter loses her right on marriage. This was an act of inequality on the basis of gender. While enacting the amendment to the HS Act, the Parliament consciously withheld from using the word unmarried daughter in any of the provisions, to ensure that even the married daughter have the coparcenary right similar to the married son.

Section 6 of the Amendment Act intentionally mentions a daughter of the coparcener but not an unmarried daughter of the coparcener. This ensures that the daughter even upon marriage is entitled to her birthright. This principle also upheld the equality quotient mentioned in Article 14 of the Constitution. In the case of Ms. Savita Samvedi and Anr vs. Union of India and Ors (1996), it was held that both the married daughter and the married son should be treated in par with one another. Any alteration can be assumed as a gender discrimination and violation to Article 14 of the Constitution.

It was interesting to note that the Government of Karnataka legislated an amendment called the Hindu Succession (Karnataka Amendment) Act, 1990, granting coparcenary rights only to the unmarried daughters of the coparcener. This was prevalent in the State for a decade until the Parliament by using its inherent powers under Article 245 of the Constitution legislated an amendment to the already existent HS Act, granting equal status to unmarried daughters. This overruled the State law according to Article 254(1) of the Constitution of India.

It was also held in the case T. Barai vs. Henry Ah Hoe and Anr (1982), that when there is a conflict between the laws made by both the Centre and the State, then according to Article 254(1) of the Constitution, the former prevails. The State law can overrule the Central law only when the inconsistency is proved and the assent of the President is received. This was noted in the case of M. Karunanidhi vs. Union of India (1979), where the superiority of the Union Act was highlighted.

Retrospective or prospective effect

Retrospection is a concept of applying a theory or law to the past events, whereas prospection is applying it only to the future. The Parliament is vested with powers to enact both retrospective as well as prospective laws. Usually, any law enacted will be well defined to describe the effect it would have on the society. It would be mentioned in the terms whether it operates in a retrospective manner or in a prospective manner. But in few cases, when there is no explicit mention regarding the timeline, then the law is considered to be prospective. However, when the amendment is made, it is usually assumed to be retrospective in nature, provided that they do not violate any provisions of the Constitution.

In the case of B. Prabhakar Rao and Ors vs. State of Andhra Pradesh and Ors (1985), it was held that the courts cannot presume the retrospective nature of legislation. It is the bound duty of the legislature to clarify the retrospective or prospective nature of an enactment.

In the case at hand, the High Court of Karnataka tried to analyse the enactment to find the nature of it. In Section 3 of the Hindu Succession (Amendment) Act, 2005 it was mentioned that Section 6 of the HS Act is substituted with the new provisions. It was held in the case of Shamarao V. Parulekar and Ors vs. District Magistrate Thana, Bombay and Ors (1952), that the aim of the amendment is to clear any repugnancy in the earlier Act. It was noted that this is similar to making error correction using a pen. Therefore, the timeline of old law exists with the new phrase. It was emphasised that this was the rule in England, the United States and it also applies to India. The Parliament by the means of substituting the Section with new provisions ensured that the enacted amendment had a retrospective effect.

It was also noted from the opening words of the amendment that the provision applies on and from the date of commencement of the amendment Act. The daughter of the coparcener becomes a coparcener by birth, so the effect of this provision follows an anterior date, thus reconfirming the retrospective nature. In addition to this, Section 6(1) of the amendment Act mentions that this Act does not involve any disposition made through execution of a deed or through a final decree made before 20 December, 2004. The explicit mention of alienation of the property indicates that there is an anterior effect to the amendment and it can be concluded that the amendment had a retrospective effect.

Factual rationale of the judgement

The factual evidence is the most prominent factor in deciding any case. In this case it was well observed that partition was not made during the lifetime of the karta Mr. D.N. Vasantha Kumar through the means of testament or succession deed. There were 5 descendants to the properties left by the karta. Two sons, two daughters and wife, the plaintiff being one of the daughters According to the Mitakshara law, in the Hindu Undivided Family, after the death of karta, the biological heirs and the wife will equally divide the properties of the family.

The respondents in their written pleading affirmed that the scheduled properties were sold to Mr. S. Narayan, director of Hotel Sri Veeba Private Limited on 26 November, 2004. It was pleaded that the Sub-section (1) of Section 6 of the Hindu Succession (Amendment) Act, 2005 did not alienate the deed registered prior to the cut off date, which is the date of enactment of the amendment. However, the partition suit was filed on 12th September 2001 and the Trial Court gave the preliminary decree on 17th January 2004. The court also took note of the fact that the defendants filed a memo not to alienate the suit property owing to the pendency. The appeal to the High Court was made on 10th March 2004. Though the sale deed was executed before the cut off date mentioned in Section 6 of the amended Act i.e 20th December 2004, the deed is hit by the doctrine of lis pendens which means the pending of litigation. Therefore, the alienation in this regard would not take away the right of the daughter as a coparcener. The court also accepted the fact that the scheduled properties C and D were transferred to the tillers of the land under the Karnataka Land Reforms Act, 1961.

In accordance with that, each member of the family gets 1/5th of the scheduled property. Through the amendment Act, the daughter of the coparcener becomes a coparcener by birth. Therefore even before the death of the karta, the sons and daughters of the karta became coparceners in the ancestral properties. Along with the karta, there are 5 coparceners which includes two sons and two daughters. So prior to the death of Mr. D. N. Vasantha Kumar, there is a symbolic partition that had happened among the coparceners, with each member entitled to a share of 1/5th of the coparcenary properties. Therefore, the plaintiff is entitled to 1/5th share as a coparcener and 1/5th share in the share of the karta, which is 1/25th share. In total the plaintiff is entitled to 6/25th share in the scheduled property. Similarly, respondents 2 to 4 would receive 6/25th share and the defendant 1 would receive 1/25th share.

Precedents referred to in Pushpalatha N.V vs. V. Padma (2010)

Various precedents were preferred by the learned counsels of the parties and the bench to arrive at a detailed judgement.

Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust vs. State of Tamil Nadu (1996)

In this case, the appeal was preferred by Thirumuruga Kirupananda Variyar Thavathiru Swamigal Medical Educational and Charitable trust related to establishment of a medical college in Salem, Tamil Nadu. The Government of Tamil Nadu enacted the Tamil Nadu Medical University Act, 1987 which was renamed as Tamil Nadu Dr. M.G.R. Medical University (Chennai) Act, 1987. According to the Sub-section (5) of Section 5 of the Act, other medical colleges are allowed to be affiliated under the M.G.R Medical University. The trust submitted an application to the university seeking affiliation for a new medical college.

The University demanded a no objection certificate from the Government for affiliation. The trust filed a writ petition in the Madras High Court seeking mandamus, which was ordered by the High Court. The trust reapplied for affiliation which was rejected by the University quoting the reason as lapse of last date. The trust again seeked the intervention of the High Court. Meanwhile, the Government of Tamil Nadu passed an amendment named Dr. M.G.R Medical University Tamil Nadu (Amendment and Validation) Act, 1989. A provision was added to the Sub-section (5) of the Section 4 of the Medical University Act, that approval from the State Government is mandatory for affiliation.

During the pendency of the appeal, the Central Government passed the Indian Medical Council (Amendment) Act, 1993 which mandated the medical colleges to get prior approval before opening. It was held under Article 245 and Article 254(1) of the Constitution that the Central law with no inconsistency to the State law is considered predominant. Under Article 254(2) of the Constitution the Parliament is empowered to amend, vary or repeal any State law. The court set aside the order of the High Court and ordered the Central Government to consider the application of the trust under Section 10A of the Indian Medical Council Act, 1956.

Bhagat Ram Sharma vs. Union of India and Ors (1987)

In this case, the appellant was a member of the Legislative Assembly of Punjab. Consequently, after his tenure he was appointed as the member of the Punjab State Public Service Commission. The district of Kangra was transferred to the State of Himachal Pradesh through the State Reorganisation Act, 1956. Now, the appellant made a request to both the Chief Ministers of the State of Punjab and the State of Himachal Pradesh to grant him pension either as a member of Punjab Public Service Commission or as a member of the State Legislature respectively. Both the Governments rejected the claim. The appellant filed a writ petition in the High Court of Punjab under Article 226 of the Constitution seeking relief. The High Court provided partial relief by ordering the Punjab Government to pay four hundred rupees as pension for his service as a member of the Punjab Public Service Commission. However, the court did not allow the pension as a member of the Legislative assembly.

The appeal to the Supreme Court was made against the partial relief granted by the High Court. The court noted that in a legislative procedure there was no real distinction between repeal and amendment. When a provision is deleted and substituted with a new provision then a repeal is performed. So, in the regard to granting pension as a member of the State Legislature the Apex Court denied interfering with the judgement of the High Court thus dismissing the appeal.

United Bank of India, Calcutta vs. Abhijit Tea Co. Private Limited and Ors (2000)

In this case, the bank was the appellant to the suit pending before the High Court of Calcutta. The respondent had a pending due of 31.13 crore rupees to the bank. A compromise decree was initially passed by the court. However, it was set aside by the division bench and allowed appeal. Congruently, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was passed by the State Government of West Bengal. Section 31 of the Recovery Act detailed the transfer of pending cases. The respondent filed an application that the suit should remain before the High Court and not be transferred to the Tribunal. It was noted by the court that Section 31 mandated that the appeals pending before any court before the commencement of the Act, which falls under the jurisdiction shall be transferred to the tribunal.

It was observed by the court that when there was a change in law, then the court must abide by it, irrespective of it being an original proceeding or an appeal. When the Act mandates the court not to exercise its original jurisdiction, the court shall follow it without hesitation. On the account of this, the appeal was allowed and the order of the single judge was set aside. The case was transferred to the Tribunal as mandated by the Act. The court also directed the respondent to file their written statement within a period of one month and the court instructed the Tribunal to dispose of the case within a period of six months from the date of reception of the order.

M. Prithviraj and Ors vs. Smt. Leelamma N. and Ors (2007)

In this case, the appeal was made against the order passed by the Principal Civil Judge, Mysore in a suit for partition. The appellant contended that the scheduled property belonged to K. Doddananjundaiah. Upon his death, the right to property devolved to his heirs N. Parvathamma, the mother of plaintiff; N. Leelamma (defendant 1); K. Kamalamma (defendant 2). Among the heirs N. Parvathamma died in 1998 leaving behind the plaintiff and defendant 6 as the legal representatives. Defendant 4 is the adopted son of the karta. Defendant 3 is the purchaser of the scheduled property by executing a sale deed. The plaintiff claimed that the defendants 1 to 6 colluded to execute the deed without his accord and filed for a partition demanding his share of 1/3rd of the scheduled property. The Trial Court passed a preliminary decree granting 1/10th share is the scheduled property to the plaintiff. Aggrieved by this order, he opted for an appeal before the High Court.

The High Court took note of the fact that an amendment was made in the HS Act, which granted coparcenary rights to the daughters of the coparcener. However, the plaintiff relied on the chronology of events and claimed that the amendment would not apply to the partition made before the deadline i.e 20th December, 2004. The court held that the amended provisions of the HS Act does not apply to the facts of the case as the partition was preferred in the year 1969. The court also highlighted that the sale deed would be applicable only to the share of defendants 1, 2 and 4 on the scheduled properties. The appeal was dismissed and the order of the Trial Court was affirmed.

Bhanwar Singh vs. Puran and Ors. (2008)

In this case, judgement of the single judge of Punjab and Haryana High Court in the partition suit was appealed. The owner of the property Mr. Bhima died in 1972 leaving behind the scheduled properties to his son Mr. Santa Ram and three daughters. The son had 1/4th share in the scheduled properties. Using his power as the coparcener, the son of Mr. Bhima mortgaged his share of properties and also executed a sale agreement on it. The appellant of this case is the son of Mr. Santa Ram.

In the suit filed before the Trial Court, the judge noted that since the property belonged to a joint family and Mr. Santa Ram being the karta, is legally entitled to execute the deed. In the first appellate court it was held that Mr. Santa Ram is a coparcener similar to that of his sisters and had inherited equal share in the ancestral property according to Section 8 of the HS Act. The first appellate court did not reverse the sale deed and highlighted that the property ceased to be a joint family property.

The Supreme Court held that considering the effect of Section 8 and Section 19 of the HS Act, the property cannot be considered to be a joint family property. All the heirs are deemed to succeed as tenants in common and not as joint tenants. Therefore, the effect of joint coparcenary status is negated. The court reaffirmed that Section 6 of the HS Act grants the daughters of the coparcener birthright in the property and through Section 19 it was also noted that each of the coparceners was entitled to alienate their respective shares. Therefore, the court held the judgement of the first appellate court as just and dismissed the appeal.

Further cases for which Pushpalatha N.V case was cited

S.No	Case	Court	Observation
1	Smt Saraswathi Gopinath vs. Ms Uma Ram (2012)	Karnataka High Court	The court held that the scheduled property belonged to the joint family and all the coparceners have equal share in the ancestral property. The plaintiff was not restricted to seek for partition as an entitled coparcener.
2	Mallanagouda S/O. Channabasanagouda vs. Veeranagouda S/O. Chanabasanagouda (2017)	Karnataka High Court	The court took notice of the case in hand as a precedent in the issue of share of the members of the joint family in the ancestral property. Section 6 of the amended HS Act granted coparcenary status to the daughters of the coparcener. The court assured the finality of the new amendment in determining the coparcenary rights of daughters.
3	Malhar Hanumantharao Kulkarni vs. Smt Geetha W/O Shivaputrappa Sudi (2012)	Karnataka High Court	The High Court was approached regarding a property dispute in a joint family. The appeal was preferred by the second defendant of the original suit. Pushpalatha case was used as a precedent in highlighting the fact that daughters of the coparcener were entitled to coparcenary status by birth.
4	Smt. Roopa vs. Sri Shivananda Reddy S/O late K.V. Nagappa Reddy (2019)	Bangalore District Court	The court highlighted the fact that the Mitakshara law was patriarchal in nature, by providing coparcenary rights to the male heirs of the family. These rights were provided to the consecutive three generations. As soon as a son is born in the family, he becomes a coparcener by birth, which provides him share in the ancestral property.
5	Smt. S. Shanthamma vs. S. Narayanaswamy (2015)	Bangalore District Court	The plaintiff filed the suit against the defendants seeking for partition and claiming a share of 1/48th of the scheduled properties. The court held that the female heirs also become the coparceners from the commencement of the amendment Act.
6	Sri Lakshmipathi vs. Sri R.S. Narasegowda (2020)	Bangalore District Court	The case of Pushpalatha was placed before the court to seek for a permanent injunction restricting the defendants from alienating the scheduled property. The court took cognisance of the judgement and accepted the coparcenary rights of daughters, however, stated that the circumstances of the present case does not match with the precedent.
7	Janarthanan vs. Vijaya (2015)	Madras High Court	The court placed reliance on the Pushpalatha case to affirm the retrospective nature of the amendment. While discussing the applicability of Section 6 of the amended HS Act, the court noted that the transactions made before the deadline provided in the Act were not affected by the new provision.
8	Muni Reddy vs. Chinnamma (2011)	Karnataka High Court	In this case, the learned counsel appearing for the defendants placed reliance on the Pushpalatha case by contending that the substituted plaintiff cannot be treated as a coparcener. The court also held that Section 6 of the amended HS Act had retrospective effect.
9	Doddamuni Akkayamma vs. Motamma (2012)	Karnataka High Court	This case was an appeal against the decree passed by the Principal Civil Judge, Bangalore. The court noted by highlighting the Pushpalatha case that the benefits of Section 6 of the amended HS Act cannot be applied in this case as the plaintiff was born prior to 1956. The court also mentioned that the said property was self-acquired by the plaintiff hence it cannot be considered as ancestral property, thereby dismissing the appeal.
10	D. Vasanthi vs. M. Saralavathi (2015)	Madras High Court	The court highlighted the Pushpalatha case to stress on the retrospective nature of the amendment. The High Court noted that daughters are conferred with equal rights in the coparcenary property similar to that of sons. However, the court also mentioned that the Hindu Succession (Tamil Nadu Amendment) Act, 1989 had a prospective effect, effective from 25th March, 1989. The appeal was allowed and the impugned order was set aside.

International perspective

Granting property rights to women is a global necessity as put forward by various legalists and sociologists. It is unfortunate that various countries have not granted property rights to women. Globally, the need for granting equal rights to women is rising through consistent activism from various agencies, statutory principles of various legal institutions and ratification of global conventions. The Director of Social Urban Rural and Resilience Global Practice, a wing of the World Bank commented that one of the prominent initiatives to facilitate financial stability to women is through securing the land rights, which in turn will empower and institutionalise the development of women. It is worth noting that one of the significant barriers to women’s property rights is the degenerative social norms of the country. Various international agreements aim at emphasising the importance of women’s property rights through continued activism and envisaging visionary projects.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly focussing on the rights of women. To incorporate the principle of equality, the convention mandated that the ratified nations abolish all discriminatory laws and provisions against women. Article 13 of the convention directs the member nations to take appropriate steps to eliminate economic discrimination against women by ensuring the rights to family benefits. Article 15 instructs the States to provide equal treatment to women in civil matters and to provide them with equal rights in administering property. Article 16(1)(h) necessitates the States to guarantee equal ownership, administration and disposition of family property.

The United Nations Entity for Gender Equality and the Empowerment of Women conducted its fourth World Conference on Women in Beijing in 1995. It was termed as the Platform for Action focussing on equality, development and peace. The action plan reiterated the need for equal treatment of men and women in all economic aspects as mentioned in the Preamble of the Charter of the United Nations. It mandated the ratified nations to pass necessary legislations to ensure that equal rights in property devolve to women. It also provided instruction for developing a comprehensive program to educate and enable women to acquire their rights. To ensure the rigidity of the rights vested upon women the action plan mandated a constitutional guarantee to ensure property rights.

The United Nations announced its visionary Millenium Development Goals in New York, USA in the year 2000 with 8 primary goals. Now, it stands at 17 goals with the target set to 2030. Among all the prominent goals, gender equality is the one most important goal. Goal 5 targets to achieve gender equality and empower all women and girls. This goal mandates the States to undertake reforms that guarantee women equal economic resources, ownership and control of land and inheritance to family property. In the year of 2019, the World Bank started an initiative named ‘Stand for her land’ to reduce the gap between law and practice, thereby ensuring women with equal land rights.

The legal enactments and the judicial precedents are important in guaranteeing the rights of women. The British Parliament granted the property rights to women through the Married Women’s Property Act, 1882. This Act was enacted for the British colonies, one among them being India. Before passing of this law, women were treated in a subjective manner and the right to real inheritance remained with the males. The daughters could only inherit movables like clothes and jewellery. The land rights were vested upon supervision of women only in the absence of male heirs. Though this Act provided women with property rights, the principle of inheritance remained the same. The Law of Property Act, 1922 granted women equal rights as men to inherit property. Women were also allowed to own and dispose of properties similar to men. In the case of R vs. Secretary of the State for Works and Pensions (2015), the Supreme Court of the United Kingdom condones the act of unjustifiable discrimination between men and women in acquiring their property rights.

In the United States of America, like any other country in the colonial era, women’s property rights were not recognised until the passage of the New York Married Women’s Property Right Act, 1884. In the case of Cole vs. Van Riper (1867), it was held that married women are not entitled to own, control or inherit any property. This was the degenerative practice prevalent in that patriarchal era. According to the US common law, inheritance is governed by testament or intestate succession. Through will the property of the parents devolve upon the biological or adopted children. In the case of multiple inheritance through succession, the property is equally divided among the heirs both male and female. The right to inheritance is also vested upon the grandchildren irrespective of the gender.

In the present world, the countries are progressively guaranteeing inheritance rights to the women. According to the study on Gender equity and peacebuilding conducted by the International Centre for Research on Women, the countries that experienced internal and external conflicts have shown greater protection to women. Out of a global scan, 102 countries in Asia, Africa, the Pacific, Latin America and the Caribbean that are in the post-conflict stage have offered progressive inheritance laws to the women. A few sub-saharan countries have no gender-specific mention in their inheritance laws thus maintaining equitable gender-based rights. However, Islamic Sharia law discriminates the position of women in inheritance. In Algeria, on the death of the father, the daughter receives 1/3rd share in the father’s estate, whereas the son receives 2/3rd share. A few countries like Tunisia and Morocco that follow Sharia law have shown a progression by granting equal rights to grandchildren in inheritance irrespective of the gender. Most Latin American countries including Dominican Republic, Mexico, Paraguay grant equal inheritance rights to sons and daughters.

Critical analysis of Pushpalatha N.V vs. V. Padma (2010)

Gender equality should have been a common practice in the world. However, it is unfortunate that still only preponderance is given by multiple activists and agencies to ensure gender equality in all walks of life. The equality in property rights is predominant among other rights to ensure independence and authority to the women. After Indian independence, there was a dire need to reform the long existent colonial law as well as the traditional law to meet the new Indian demography. The provision of the Hindu succession bill was formulated by the member of drafting committee and a legal expert Mr. B.N. Rao and it was catapulted by Dr. B.R Ambedkar.

The main aim of the reform in succession law was to do away with the regressive clauses in the Mitakshara law and the unprogressive principles of other traditional schools. It was necessitated by the law members of the committee that a progressive society can be achieved only through granting equal rights to women. To ensure economic freedom for women, it was necessary to replace the concept of survivorship by substituting it with inheritance through succession. It was also essential to grant equal rights by birth over the joint family property to women.

However, it was easier said than done. There was a string of opposition to the idea of granting equal property rights to women from the conservative sector. In spite of that the HS Act was passed in the year of 1956, which ensured absolute ownership of property possessed by women. Section 14(1) of the HS Act made sure that any movable or immovable property acquired by women before or after the commencement of the law shall become her property with absolute ownership. In addition to that, a daughter of the dying intestate was classified under Class 1 heirs providing her with equal rights similar to that of a son. All these rights were granted to women irrespective of the method the property was acquired. However, similar to Mitakshara law, the coparcenary rights were denied to women even after the enactment of the HS Act. The inequality continued to persist with regards to coparcenary status of women.

The question arises as to why granting coparcenary status to women was essential. Before ensuring equal status of women in the society it is necessary to establish it within the boundaries of a family. Due to the fact that the women were provided with restricted access to family property and because of their dependence on male members to acquire property rights, they had to endure pseudo marginalisation within the family. Their rights and needs even today are placed second to the male members. This also restricts women from acquiring representation in the society thereby their contribution and potential goes unnoticed. Granting equal coparcenary rights to women was a major step towards granting her authority. It was not just a mere access to property of the family but an accreditation towards her equal efforts towards the welfare of the family. This step also ensured social respect by showcasing the ability to support the society through the economic resources at her disposal.

The amendment made in 2005 to the HS Act though considered as a belated remedy, yet it had a significant impact. It is worth noting that the States like Karnataka, Tamil Nadu, Maharashtra and Kerala have been the forerunners in granting the coparcenary rights to the women prior to the amendment in the Central Act. The amendment was a curative legislation towards the injustice inflicted upon women for centuries. The amendment brought a change in Section 6 of the HS Act by enabling the daughters of the coparcener to be a coparcener by birth. This is a right acquired by birth and thus called a vested right. Any heir born in a Joint Hindu Family acquires this right over the family property. However, the party was vested only with the right to be a coparcener but there is no rigidity in the share that would be devolved upon them. This is so because a new addition to the family would reduce the share of already existing coparceners.

The directive principles of State policy directed the State and Central Government to reform the social and economic policies to eliminate obstruction and discrimination faced by women under Article 38 of the Constitution. Article 46 of the Constitution vested the responsibility on the government to ensure the welfare of marginalised communities. These provisions along with the right to equality guaranteed by the Constitution stand as a guardian for the protection of the rights of women. Thus an amendment was preferred in the existing HS Act to meet the guidelines of the Constitution, correct the long-standing error as well as to stand in par with the international community. This amendment is not only considered as a gender based initiative but also a first step towards socio-political change in the society.

In the Pushpalatha case, the court not only stood by the ideals of the amended Act but also tried to give some important interpretations. The first one being the retrospective effect of the amendment. The court clearly noted that when a substitution is made in the existing provision, then it should be understood that the provision was in effect from the start of the Act. On the contrary, if the amendment was considered to have a prospective effect then there would be no remedy for the injustice committed in the past. It would neither affect the condition of the senior members of a Joint Hindu Family nor it would provide justifiable relief to the ongoing proceedings. Taking a retrospective effect was a welcome step towards guaranteeing the economic prospects that are due for the women in a Joint Hindu Family.

However, if the retrospective effect was given without a time frame, it would become disastrous to the entire machinery of administration. The legislators consciously made the provisions of amendment effective on and from the date of commencement of the Act. Thus, any dispute started before 1956 would not be appropriated by the provisions of the amendment. Also, a threshold date of 20th December, 2004 was fixed to determine the applicability of the amended provisions on the ongoing partition suit. This positive restriction provided in the provision Acts as a barrier to the indiscriminate use of enactment to the settled suits.

The next major conclusion drawn out of the judgement of this case is that the coparcenary rights are devolved upon not only the unmarried daughters of the coparcener, but also to the married daughters. This facilitates the female members of the Joint Hindu Family to hold the absolute right over their share of the family property irrespective of their marital status. This not only ensures the authority of women in their parental home but also strikes an independence and autonomy in her marital home as well. Though married daughters of a coparcener ceases to be a member of the Hindu Undivided Family, their rights over the ancestral property are not alienated.

Finally, the amendment, while bestowing rights on the daughters of the coparceners, did not attempt to take away the rights of other female members of the Joint Hindu Family. The Class 1 heirs of a Hindu Undivided Family are provided with the share that they are entitled to as per the provisions of the HS Act. However, since there is an addition of new coparceners to the family property, the share of every other member will be reduced. In this case, the wife of the karta who is not a coparcener, was initially entitled to 1/15th share in the family property but after the amendment she was entitled to 1/25th share in the property.

Way Forward

Granting coparcenary rights alone is insufficient in achieving gender equality. The State should continue its valiant efforts in the direction of visualising an equitable society. It is imperative that women are provided with legal awareness and aid to cherish the rights that are bestowed upon them. It becomes the responsibility of the government to navigate women in filing for their claims and resolving the dispute accordingly. To expedite this process the use of technology should be maximised in filing as well as documentation procedures.

Community outreach programs should be conducted to improve the awareness and knowledge of women in the field of adjudicating legal disputes. The idea of a dedicated helpline and women’s property rights centre should be recommended by the policymakers. There is a possibility that women who are facing property disputes due to the lack of legal knowledge and the fear of the cumbersome process involved would prefer a non-institutional way of settlement. A dedicated helpline for property disputes shall offer free legal aid and awareness to the affected women in the comfort of their homes. This initiative can be undertaken by the women advocate associations of the bar councils across India. Entrepreneurial opportunities should be made available to the female counterparts so that they understand the need for economic resources at their disposal. Policies like tax incentives and financial support that help women in acquiring their property rights should be generalised and made easily available.

The coparcenary status should also be expanded to widows and adopted daughters. The main aim of granting coparcener status is to provide women with economic autonomy. Then it becomes mandatory to provide it for widows and also for the adopted daughters as they pose a higher risk of marginalisation. Considering the broader perspective of property, it would also be apt to provide rights over intellectual property including the devolution of royalty. There should also be reasonable and legal restrictions on disinheritance through testament. Apart from inheritance, the right to residence should become fundamental to all the women of the Joint Hindu Family.

Conclusion

Coparcenary status of women is a significant milestone in achieving gender equality in the society. The State must continue to efficiently implement comprehensive measures in the field of women’s rights through fostering legal awareness, providing infrastructural assistance and reforming degenerative policies. True gender equality can be achieved only when there is an active participation of women in all strata of the society without any discrimination. Advocating for these progressive measures not only benefits the women but also the family, their offsprings and the entire community.

This case had given a wide array of interpretations and provided answers to some serious questions through diligent inspection of statutes. Thus, the precedential value of the judgement is indispensable. Apart from the efforts of the legislative, it is imperative that the judiciary takes the baton of gender equality forward by the means of judgements like these. This ongoing commitment to gender equality will create a just, harmonious, and progressive society for all.

Frequently Asked Questions (FAQs)

What is a Hindu Undivided Family?

Hindu Undivided Family (HUF) or Hindu joint family is a legal entity that represents a family. According to the Mitakshara law, once a man gets into a marital relationship, he is capable of creating a HUF. Section 2(31) of the Income Tax Act, 1961 classifies HUF as a legal person. According to the MItakshara law, a HUF is created by the members of a family who all are the descendants of a common ancestor. A member can be added to HUF by the means of adoption as well. The members of an HUF include father, mother, sons, unmarried daughters, grandparents and grandchildren. A widow, married daughters who have returned to their father’s home, and daughter-in-law’s also form a part of HUF. When a daughter gets married she ceases to be a member of the HUF.

In the case of Surjit Lal Chhabda vs. Commissioner of Income Tax, Bombay (1975) it was held that both Hindu Undivided Family and Joint Hindu Family are synonymous to each other. Every HUF is headed by the karta who is the oldest person in the family. Karta of a HUF is provided with administrative and economic powers to manage the affairs of a HUF.

What are the rights of a coparcener?

According to the HS Act, a coparcener is a person born in a HUF, who has legal rights over an ancestral property. A person with up to four generations of lineal descendants is considered to be a coparcener. In a HUF, all married sons and daughters, unmarried sons and daughters, wives of male members and the karta are considered to be coparceners. Every coparcener has the following rights vested upon them.

Shared rights over the family properties
Right to joint possession of properties
Right to maintain and administer the properties
Right to prevent the misuse of the properties
Right to demand for a partition
Right to alienate or sell the properties

In the case of Prakash vs. Phulavati (2015), it was held that the married daughters were also considered as coparceners even though they may not be a part of the HUF. The married daughters could claim an equal share in the family property in case of absence of a will. It was also noted by the Supreme Court that the right to be a coparcener is vested upon the living daughters of the living coparceners from the commencement of the amended HS Act.

What is mesne profit?

Mesne profit may be defined as the compensation that a rightful owner claims in case of wrongful possession or enjoyment of his/her property. Section 2(12) of the Civil Procedure Code, 1908 defines mesnes profit as the profit received by a person of wrongful possession of a property. Mesne profit serves as a compensatory mechanism to repay the rightful owner the losses incurred due to the wrongful possession of a property. To recover mesne profit the person claiming ownership should prove before the court of law that he/she is the rightful owner and the property is illegally occupied. Order XX Rule 12 of the Civil Procedure Code, 1908 provides a mechanism to pass a decree to recover the mesne profit.

In the case of M/S Hindustan Motors Ltd vs. M/S Seven Seas Leasing Ltd (2018), the Delhi High Court held that the appellant wrongfully occupied the property of the defendant after the expiry of the period of tenancy. The Court ordered to calculate the mesne profit from the date of expiry of tenancy till the date of return of possession of property and pay the calculated amount along with the court expenses to the defendant.

What are the classes of heirs in succession?

The Distribution of property is based on the legal share entitled upon the party claiming for it. This legal predicate is determined by the class to which the party belongs. Class is a general grouping of members of a Hindu Undivided Family on whom the family property is devolved. In general, there are two classes, Class I and Class II. Sections 10 and 11 of the HS Act formulate the distribution of property among heirs of class I and class II respectively. The list of heirs in each class is tabulated in the schedule of the HS Act. The class I heirs include

Son
Daughter
Mother
Widow
Son or Daughter’s predeceased son or daughter
Second generation of predeceased son or daughter
Widow of predeceased son
Second generation widow of predeceased son

The class II heirs include

Father
Brother
Sister
Third generation of son or daughter
Second generation of brother or sister
Paternal or Maternal Grandfather
Paternal or Maternal Grandmother
Father’s brother or sister
Mother’s brother or sister

What is the Doctrine of lis pendens?

The Doctrine of lis pendens is a legal principle which restricts the transfer of immovable properties during the pendency of a suit. Lis pendens is a Latin word meaning pendency of legal action. The aim of this doctrine is to prevent the rights of the parties over a property alienated before the disposal of the suit. This doctrine is envisaged in Section 52 of the Transfer of Property Act. 1882. This Section mandates that upon institution of a suit in any competent court, then such proceedings restrict the transfer of property related to the suit.

In the case of Nagubai Ammal and Ors vs. B. Shama Rao and Ors (1956), the period of restriction on the transfer of property due to the pendency of the suit was discussed. It was held that the property is considered to be under the restriction to sale until a final decree is passed. This means that even appeal proceedings and execution proceedings are considered as pendency of suit.