This article is written by Harshit Bhimrajka, from the Rajiv Gandhi National University of Law, Patiala. This is an exhaustive article which talks about the concept of notional partition, the amendment in the Hindu Succession Act, 1956, and the landmark judgments regarding Section 6 of the Act (notional partition).
The concept of a Hindu joint family is unique to Hindus and it is legally recognized. There are two schools of law that govern the law of succession of the Hindu Undivided Family under Indian law- Dayabhaga and Mitakshara. To understand the concept of notional partition, primarily, one has to understand the concept of both the schools of law.
Mitakshara law school only refers to the male member of the joint family and is extended to son, grandson, and great-grandson of the family. A son by birth acquires an interest in the ownership of the ancestral property of the joint family. All male members of the joint family collectively have coparcenary (co-ownership) in the ancestral property. After the 2005 Amendment of the Hindu Succession Act, a female can legally be a coparcener and is entitled to the partition. In this system, the property cannot be shared physically but the share can be ascertained in numerical terms. This system is more conservative. This exists throughout India except in the State of Bengal and Assam.
Dayabagha law school is not specific to any gender. After the demise of the father, the right of property prevails to the children but not automatically after birth like in the Mitakshara system. The father has full and uncontrolled power over the ancestral property until his death. This system is majorly observed in Bengal and Assam. In this system, the property is physically separated into specific portions and is assigned to each coparcener. This system is more liberal than Mitakshara. In this world of economic compulsion and growth of the individualism, the Dayabhaga system is more likely to last than the Mitakshara system.
Before the amendment in the Hindu Succession Act, 1956, female heirs were not given a share in the ancestral property. There was a need for radical reforms in this Mitakshara Law so that everyone gets equal share who has an interest in the property if the coparcener died intestate(without any will). This concept refers to that when one of the coparceners died, in respect of his undivided interest in the coparcenary property, there should be an equal distribution of that share between his male heirs and female heirs, particularly between his daughter and son.
For example, A had a family property and he had only one son B, who died intestate. B had one daughter and one son. The family property was undivided when B died. Now B’s children will get an equal share from the share of B i.e. half in the family property. But before the 2005 amendment in the Hindu Succession Act, female heirs had no right to the share in the family property.
Section 6 of the Hindu Succession Act, 1956 provided the devolution of interest in a coparcenary or co-ownership property of a person who died intestate. It means that when the person dies intestate and if he has any coparcenary property then it will devolve accordingly to his male sons, grandsons and great-grandson (not more than three degrees of generation). This is defined as survivorship when the undivided interest in the coparcenary property is divided equally among the male heirs of the deceased person in terms of survivorship. No right was given to females in this Act. Even the wife was not also given any entitlement in the coparcenary property as she was not considered as a direct bloodline of the deceased person. In simple terms, male heirs were regarded as coparceners but female heirs (including daughter and wife) were not.
In 2005, the Indian legislature made some amendments to the Hindu Succession Act, 1985. We will specifically talk about Section 6 of the Hindu Succession (Amendment) Act, 2005. It iterated that the devolution of the property will be according to the survivorship if there are only male heirs in the family and no female heirs. If the family has both male and female heirs, then the concept of survivorship will not apply, the devolution will occur to the heirs prescribed by the law.
Some of the major changes introduced by the amendment in the Act are as follows:
- All the heirs will have equal rights irrespective of gender and they will be considered coparceners by birth.
- The daughter of a deceased person has the same entitlement on coparcenary property as the right of a son.
- There is no difference when it comes to the liabilities, just as rights are equal, so also, the liabilities. In Mitakshara if there is any coparcenary’s liability then it will be applicable to both son and daughter equally.
- Similarly, female’s three-generation such as daughters, granddaughters, and great-granddaughters are also entitled as in the case of male heirs.
- The responsibility of debt repayment by the male heirs and female heirs for their fathers, grandfathers, and great-grandfathers. Debt repayment does not transfer to the descendants and it ends when the debtor dies.
- These Amendments are only applicable to a Hindu whose property interest lies to a joint Hindu family under Mitakshara law and who dies either testamentary or intestate after the commencement of the Amendment Act.
- The female heirs who are eligible to inherit are classified as follows:
- The daughter(s),
- The daughter’s-daughter’s son(s),
- The daughter’s-daughter’s daughter(s),
- The daughter’s son’s daughter(s), and
- The son’s daughter’s son(s) (the predeceased great-granddaughter which is only applicable if the male heir or the grand is predeceased).
Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors. (1981)
In this case, Lalu Pratap, the plaintiff, filed a complaint that the estate of the deceased person be governed by the rule of lineal primogeniture, whereby the estate of the deceased held jointly is divided among the male members even though there are female members in the family. The plaintiff believed that the rule of survivorship or the rule of lineal primogeniture is the applicable law, not the Succession Act as the Act came into force after the death of the deceased.
The Honourable Court held that the rule of survivorship or the rule of lineal primogeniture is not applicable since the Act was already in force. It was also observed that the old Act is retrospective in nature.
Yogendra & Ors v. Leelamma N. & Ors. (2009)
In this case, Yogendra’s first marriage was carried out legally in the court and the marriage was registered under Section 5 of the Hindu Marriage Act, 1955. One of the provisions in the said Act is that a spouse cannot marry another spouse if the first one is still alive or the divorce happened. In other words, it prohibits bigamy or polygamy. Yogendra had three daughters- Leelamma, Kamalamma, and Parvathamma with his first wife. Subsequently, Yogendra got married to another woman while the first one was still alive. The second marriage was illegal according to the Hindu Marriage Act, 1955. Thereafter, the second wife bore him a daughter namely Dinesh.
The bone of contention was whether the daughter of the second wife Dinesh was entitled to the property of Yogendra as a coparcener under Section 6 of the Hindu Succession Act or under Section 8 of the Amended Act.
The Court held that the Hindu Marriage Act, 1955 declared the second marriage as illegal and also null and void. It was also held that Dinesh will not be considered as a coparcener but as an illegitimate child of Yogendra. She cannot inherit any property as coparcener under Hindu Succession Act but can inherit the property as an illegitimate child under the Amended Act.
Prakash v. Phulavati (2015)
This is a landmark case in which the interpretation of the law was done by the judges of the Supreme Court. The deceased person died before the amended Act i.e before 2005 but after some years, his daughter filed a complaint to get an equal share in the property of the father as a coparcener under the Act. The court interpreted the legislation and held that the Act was meant to be prospective in nature, not retrospective, therefore, the person who died before 9th September 2005 will not be covered under this amended Act and it will only apply to the person who died after the Act came into force. Thus, the rule of survivorship will apply in this case and the daughter will not have any share in the estate of the father.
Danamma v. Amar (2018)
In this landmark case, the Supreme Court took a different opinion as it took in the case of Prakash v. Phulavati (2015). The father (propositus), male coparcener, died in the year 2001 and subsequently next year, his sons filed suit for partition. The daughters contested the suit and the sons claimed that the daughters of the deceased father are not entitled to any share in the estate as the father died before the commencement of the amended Act. The claim of the daughters was rejected by the trial court as well as by the high court on the ground that they were born before the commencement of the Hindu Succession Act, 1956. On appeal, the Supreme Court held in favour of the daughters that they have entitled to the share in the estate. It was held that the preliminary decree is a pertinent factor in the devolution and partition of the estate. The Supreme Court relied on the judgment in Ganduri Koteshwaramma & Anr v. Chakiri Yanadi & Anr. (2011) case in which the principle that partition is not complete with the passing of preliminary decree until the final decree is passed was laid.
The legal scholars found both the judgments in the Prakash & Ors. V. Phulavati & Ors. and the Danamma Suman Surpur & Anr. v. Amar & other cases are debatable and opposite. According to the law interpreted in the case of Phulavati, the daughters in the case of Danamma were not entitled to any share in the property, but the Supreme Court took a different position by implying that the commencement date is no longer applicable to birth or conception but relied on the principle of preliminary and final decree laid in the wholly different case i.e. Ganduri Koteshwaramma & Anr. v. Chakri Yanadi & Anr. because of which the whole judgment favoured the daughters and they did get entitlement in the share of the father. It is now difficult to interpret such cases as the judgments created confusion for all the lower courts.
But the decision in the Prakash & Ors. v. Phulavati & Ors case should be the dictum on which one can rely and not on the decision given in the Danamma Suman Surpur & Anr. v. Amar & others. The reason is that the decision in the latter case makes no practical sense as it only makes mention of conception, birth and death. But in the former case, it was the pure interpretation of the legislation made by the legislators when drafting the Act and they didn’t envisage any passage of decree principle in the law.
Society has gradually started removing the element of patriarchy. But prior to the development of the equality rights in the world, the society was completely patriarchal. The male heir was given the preference and was accorded with everything: the title, succession of his parent’s wealth and estate, devolution, etc. Now in recent times, women are also accorded with the same rights as that of men.
The Constitution of various countries gives this right of equality to the people irrespective of gender. If we talk about the Hindu Succession Act, 1956, no rights were given to the female heirs but the Amended Act of 2005 speaks volumes of gender equality and inheritance. The main goal of this Act is to ensure that both, male and female heirs, are entitled to the title of the coparceners in the family’s estate.
Though the Supreme Court decisions have created confusion in the interpretation, the basic aim and goal of equality in inheritance can be achieved by this Act and the correction of the said confusion will soon be done. The step taken by this amended Act of eliminating gender inequality is much appreciable, but the social perception in Indian society on gender equality is still lacking and that is to be achieved.
“Gender equality is a human fight, not a female fight.”
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