This article is written by Aakanksha Jadhav, student of law at the West Bengal National University of Juridical Sciences (NUJS), Kolkata.
Introduction
The Hindu Succession Act (‘the act’) enacted in 1956 is the governing piece of legislation concerning the transfer and devolution of property amongst Hindus in India.[1] It codified the existing laws of inheritance while also introducing certain changes. It sought to redress some anomalies created by traditional Hindu Law. However, it was a compromise between tradition and modernity that could not lead to full equality.[2]
The desire to retain the Mitakshara coparcenary along with principals of intestate succession in the act led to complexities.[3] While a daughter would get only a share from the presumed partitioned property of her father, the sons continued to get a share in the coparcenary property as well as the notionally partitioned property.[4] To redress these problems, the act was amended in 2005. It gave women a right by birth in the property of their father by including them in the coparcenary.[5] This was a huge blow to patriarchy institutionalized by law and paved way for women to have true economic and social equality. However, post the amendment, there have been inconsistencies in the interpretation of § 6 concerning the devolution of interest in the coparcenary property. This has hindered the achievement of the objectives of the amendment act.
In the first part, we will deal with the nature of rights in coparcenary property before the amendment act. In part two we seek to understand the implications of the amendment act. In part three we probe the controversy regarding the retrospectivity of the amendment act and judicial pronouncements regarding the same. We shall examine the inconsistencies that have plagued the interpretation of § 6 of the amended act. In part IV, we look at the possible redressal of the issue.
I. Property Rights of women under the act before the amendment
The Concept of Hindu Coparcenary
Traditional Hindu Coparcenary consisted of four generations of male members in a family, starting from the oldest surviving member.[6] The undivided coparcenary property belonged to all the members of the coparcenary where each coparcener held a share by birth, and thus it devolved by the rule of survivorship.[7] Such an arrangement left the female relatives of the deceased without any protection as the property rights were vested solely in men who were a part of the coparcenary.[8] The exclusion of women was a result of the notion that women lacked the potency to perform religious obligations, such as providing offerings to ancestors and performing funeral rituals.[9] Thus, traditional laws of succession were ridden with gender bias and hindered any possibility of equality for women.
When the act was being framed, B. N Rau and B. R Ambedkar recognized these problems and had, in fact, proposed to do away with the concept of Mitakshara coparcenary altogether.[10] This proposition was met with fierce opposition. The idea of making daughters a part of the coparcenary was also pioneered but was not accepted.[11] Thus the act was a product of a middle ground. The Mitakshara coparcenary was retained but more protection was offered to women than what was offered under traditional Hindu law.
Protection offered to women under the 1956 act
In light of the principles of equality enshrined in the constitution, the act tried to alleviate the position of women by giving them a share in father’s separate property. Daughters were introduced as class I heirs and this enabled the daughters to get a certain share out of their father’s property through the concept of a notional partition.[12]
A Hindu male can hold two types of property. The first one is ancestral property that devolves by the rule of survivorship.[13] The second one is separate property that devolves according to the rules of intestate succession.[14] After partition, the property is considered to be separate property of the man which devolves upon his heirs by intestate succession. Thus, the concept of notional partition was introduced in explanation I of § 6 of the 1956 Act.[15] It mandated a legal presumption that a partition had taken place immediately before the death of the coparcener who had, either a female relative specified in class I of the schedule of the Act, or a male relative who claimed through such a female relative.[16] This entailed that the property would devolve by intestate succession and not by the rule of survivorship. This legal fiction was created to protect the interests of the daughter of the deceased.[17] As the notionally partitioned property would be considered to be separate property, she would be entitled to a share out of it.
This assured the daughter some interest in the father’s property. Before the act, entire undivided property would devolve to surviving coparceners as per the rule of survivorship, leaving the daughter remedy-less.[18] This was the first step, though a cursory one, is ensuring that there is parity between male and female successors. However, the result of this provision was that sons of the deceased coparcener could claim both as heirs and later as surviving coparceners.[19] This is because notional partition is only a tool to demarcate the share that the deceased would have received and it does not disrupt the coparcenary property as whole.[20] Hence, the rest of the undivided property continues as coparcenary property. This enabled the male members to get a share larger than their female counterparts.
II. Position Post Amendment
It was observed that granting daughters a share in the notionally partitioned property of their fathers still did not place them on the same level as their male counterparts. In light of this, there could be only two ways in which equality could be truly achieved in this regard. Either the concept of coparcenary property had to be abolished or daughters had to be made a part of the coparcenary.[21] Kerala followed the first route while the second model of making daughters a part of the coparcenary was introduced by Andhra Pradesh and was later followed by Maharashtra, Tamil Nadu et al.[22] These state amendments were an effort to realize the constitutional mandate of equality. It was also to eradicate the practice of dowry which was believed to have stemmed from this exclusion of women from holding property.[23] However, some of these amendments excluded married daughters from their ambit.
In 2000, the 174th Law Commission Report suggested a number of reforms with regards to women’s right to property.[24] It also pointed out another bias in § 6 of the Act wherein, when property devolves according to § 8, it considers male line of descent up to two degrees, but the female line only up to one degree.[25] It also proposed to delete § 23 of the act that excludes female heirs from claiming a partition of the dwelling house.[26]
In 2005, the amendment was passed along the lines of various state amendments and the Law Commission Report. This had the effect of overriding the state amendments.[27] After the amendment the fundamental principles of the Hindu coparcenary were challenged. Daughters were made a part of the coparcenary and were granted the same rights over the coparcenary property as their male counterparts.[28] Further, earlier daughters were barred from becoming kartas because they were not a part of the coparcenary.[29] However, by the application of the amended § 6 they can now act as kartas. The Parliament also proceeded to obliviate the distinction between a married and an unmarried daughter.[30] This was path-breaking blow to institutionalized patriarchy as it made women economically independent. However, problems still persist regarding concepts like reunification which are governed by uncodified Hindu law.[31]
III. Issues in Interpretation
Prakash v. Phulavati
In the present case the suit for partition and for inheritance was filed in the year 1992 by the daughter of the deceased.[32] During the pendency of this suit, the amendment of 2005 was enacted and the plaintiff amended her plait to be able to benefit from this amendment.
The trial court however, did not decree a share in the ancestral property in her favour. In appeal, the High Court reversed this decision and held the amendment act would be applicable to the present case, even though the respondent’s father had passed away before the enactment. While interpreting § 6(5) of the amendment act, it held that it only bars applicability of the amendment act to cases where partition has been effected before the stipulated date.[33] However, this bar will not be attracted in the present case because there was no deed of partition but only a notional partition that had taken place.
The defendants in the present case appealed to the Supreme Court and contended that the plaintiff respondent was entitled to the separate property of her father, but was not entitled to the ancestral property.[34] According to them, the plain wording of the amended provision made it clear that the provision would apply to “daughter of a coparcener” during the commencement of the act.[35] However, since the coparcener had died before the amendment in the present case, the daughter would not able to claim benefit of the amendment. Against this it was contended that the amendment was a social legislation and should be given retrospective effect barring for partitions that have been effected by a decree of court or those done by a registered deed.[36]
The court held that the amendment act can only be effective if the death of the father occurs after the date of enactment. In absence of any express provisions, it was held that the act cannot be applied retrospectively, even if it is a social legislation. Thus, the amended shall only apply to “living daughters of living coparceners” at the time of enactment and the transactions prior shall remain unaffected.[37]
Dannamma v. Amar
In this case, the appellants were the daughters of a coparcener who had died in 2001.[38] The respondents were the sons of the deceased who had filed a suit for partition of the property in 2002. They claimed that the daughters were born prior to 1956, the enactment of the act. The trial court had denied any share to the daughters. The appeals to High Court were also dismissed.
However, the Supreme Court reversed the impugned judgements. The question was whether by the virtue of the amendment, the daughters would become coparceners “in the same right as the sons.”[39] While relying on the case of Anar Devi, it held that the concept of notional partition exists only for the computation of the interests of the shares of the heirs and does not disrupt the coparcenary as a whole.[40] Further, the court reiterated the principles laid down by the Phulavati case.[41] It said the purpose of the amendment was to realize the constitutional mandate of equality.
The trial court decree in the present case was passed in 2007. The court held that the lower courts should have been mindful of this change in legal rights. It relied on the case of Ganduri Koteshwaramma, to say the rights under the amended act are not lost merely because a preliminary decree has been passed in a partition suit before.[42] It was held that the amendment further gave an inherent right by birth in the property to the daughters.[43] The court then directed the trial court to apply the principles accordingly and grant a share in the coparcenary property to the daughters as well.
Ambiguities in Interpretation
The judgement in Danamma thus brought back the controversy from its grave. Though the judgement agrees with the ratio in Phulavati, it does not apply it. By giving the daughters the benefit of the amended act even though the father had died before the amendment, the judgement directly goes the against the ratio of Phulavati which prescribed that the amendment shall only apply to “living daughters of living coparceners.”[44] Since the Phulavati case still continues to be good law, a daughter whose father had died before the amendment cannot claim the benefit of the amendment act. However, going by the ruling in Danmma, a daughter will be entitled to the benefits of the amendment act in a pending suit filed after 2005 regardless of when the father died. The distinction between fresh suits for partition and pending suits does not a have sound basis.
By the literal interpretation of the statute, the ruling in Phulavati is legally sound. It is also more pragmatic to set a clear date for the application of the amendment act. This has, however, been blurred by the judgement in Danamma. There is still ambiguity as to whether daughters of coparceners dying before the amendment act can by the virtue of the judgement in Danamma institute a claim in the coparcenary property.
The rationale in Danmma focuses of the objective of the amendment to give the daughters “inherent right to property by birth.”[45] If this rationale is followed, then in case of father’s death before the amendment a daughter should be allowed to institute a claim for partition based on this right. However, the ruling restricts itself to pending suits or suits filed by a male coparcener. In contrast, noticing that the ruling in Phulavati is an “authoritative precedent,” a female has no rights under the amendment act if the father had died before enactment. In such a case, she shall have no claim to institute proceedings for partition. Hence, in this author’s view, it is not logically sound to draw a distinction between suits for partition that have not been finally decided, those suits for partition that are sought to be instituted by daughters. The effect of these two judgements, thus, has dichotomized the law.
IV. The way forward
The statement of objects of the amendment act states that the traditional Mitakshara coparcenary infringes women’s right to equality by excluding them from inheritance of ancestral property.[46] The amendment seeks to redress this inequity. The ruling in Danamma[47] thus, is more in consonance with the objective of the act.
The logical basis provided by amendment act and that provided by the ruling in these cases remains the same. It says that transactions prior to enactment shall not be affected and it seeks to protect that rights that have already been conferred. However, this end can be achieved even if the ruling in Danamma is not restricted only pending proceedings. Even in a scenario where father has died before the enactment of the amendment act and no partition has been effected for the coparcenary property, a daughter should be allowed to institute proceedings and claim her share as per the amendment act. In such cases too, there is no finality of shares among the coparceners. Hence, giving such a benefit to the daughter will not negative rights conferred previously. In this case also, the benefit of the amendment act can be provided regardless of the date of death of the father.
Going one step further, it has been proposed by some critics that the concept of coparcenary property be abolished altogether.[48] This had been done in the state of Kerala in its now overridden amendment act. This idea was ejected by the Law Commission on the account that this would not protect the interests of women.[49] Thus making daughters a part of the coparcenary is perhaps the best way to protect their interest from being willed away.
Conclusion
In a country like ours where patriarchal notions still control the economic and social lives of women, legislation should be a stepping stone to overcome these barriers and not act as a roadblock. Despite the enactment of the amendment, women do not claim a share in their father’s property. The society still treats women who demand their rightful share in ancestral property with contempt. The 2005 amendment is a big step in dismantling patriarchal forces because it grants women economic freedom and challenges the notion that they become a part of their husband’s family after marriage. Many families are concerned about the status of their property in absence of a son being born. This anxiety can be alleviated with the amendment act as it treats the daughter as a legitimate inheritor.
In such a scenario, legislative ambiguities make path to equality even more difficult. In absence of a fixed precedent, lower courts find it difficult to apply to provisions of the amended act. The judgement in Phulavati[50] may deter daughters of coparceners having died before the amendment from approaching the court. In any case, their rights under the Danamma[51] case are also restricted. Hence, there is an immediate need to reconcile the law and decide whether a strict approach needs to be followed or whether the statute should be applied liberally. Though a liberal approach is encouraged, it must also been seen that such an approach does not lead to disturbance of previously settled rights. Thus an authoritative ruling is needed to enable the better implementation of the amendment act.
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Bibliography
Cases
Anar Devi and Ors. v. Parameshwari Devi and Ors. (2006) 8 SCC 656.
CIT v. Govindram Sugar Mills, AIR 1966 SC 24.
Danamma v. Amar and Ors. (2018) 3 SCC 343.
Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788.
Prakash v. Phulavati (2016) 2 SCC 36.
Statutes
Statement of Object and Purposes, The Hindu Succession (Amendment) Act, 2005.
The Hindu Succession (Andhra Pradesh Amendment) Act, 1985, §29A, §29B, §29C
The Hindu Succession (Maharashtra Amendment) Act, 1994
The Hindu Succession Act, 1956.
The Hindu Succession Act, 2005, §6.
Other Authorities
Law Commission Of India, 174th Report on Property Rights of Women: Proposed Reforms under the Hindu Law (May 2000).
Treatises
D.F. Mulla, Principles Of Hindu Law, Vol.1 (21st ed., 2013).
J.D. Mayne, Treatise on Hindu Law and Usage (5th ed.,1892)
M.P. Jain, Indian Constitutional Law (8th ed., 2018)
Poonam Pradhan Saxena, Family Law Lectures, Family Law 2 (3rd ed., 2011).
Journal Articles
Sivaramayya, Coparcenary Rights to Daughters: Constitutional and Interpretational Issues, SCC J-25 (1997)
Florence Laroche-Gisserot, Women’s Inheritance According to the 2005 Amended Hindu Succession Act, INT’L SURV. FAM. L. (2007).
Kishwar, Codified Hindu Law: Myth or Reality, 33 Economic And Political Weekly (1994).
Poonam Pradhan Saxena, Notes and Comments: Judicial Re-Scripting of Legislation Governing Devolution of Coparcenary Property and Succession Under Hindu Law, 58 JILI (2016).
Shivani Singhal, Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 19 Stud Adv (2007).
Endnotes
[1] The Hindu Succession Act, 1956.
[2] Florence Laroche-Gisserot, Women’s Inheritance According to the 2005 Amended Hindu Succession Act, INT’L SURV. FAM. L. (2007).
[3] Poonam Pradhan Saxena, Notes and Comments: Judicial Re-Scripting of Legislation Governing Devolution of Coparcenary Property and Succession Under Hindu Law, 58 JILI (2016).
[4] Poonam Pradhan Saxena, Family Law Lectures, Family Law 2 (3rd ed., 2011).
[5] The Hindu Succession (Amendment) Act, 2005, §6.
[6] D.F. Mulla, Principles Of Hindu Law, Vol.1 (21st ed., 2013).
[7] Id.
[8] J.D. Mayne, Treatise on Hindu Law and Usage (5th ed.,1892)
[9] Id.
[10] M. Kishwar, Codified Hindu Law: Myth or Reality, 33 Economic And Political Weekly (1994).
[11] Shivani Singhal, Women as Coparceners: Ramifications of the Amended Section 6 of the Hindu Succession Act, 19 Stud Adv (2007).
[12] The Hindu Succession Act, 1956.
[13] Mulla, supra note 6.
[14] Mulla, supra note 6.
[15] The Hindu Succession Act, 1956.
[16] The Hindu Succession Act, 1956, §6; Mulla, supra note 6.
[17] Saxena, supra note 3.
[18] Mulla, supra note 6.
[19] Singhal, supra note 11.
[20] Saxena, supra note 3.
[21] Gisserot, supra note 2.
[22] The Hindu Succession (Maharashtra Amendment) Act, 1994, The Hindu Succession (Karnataka Amendment) Act, 1994, §6A, §6B, §6C, The Hindu Succession (Andhra Pradesh Amendment) Act, 1985, §29A, §29B, §29C,
[23] Singhal, supra note 11.
[24] Law Commission Of India, 174th Report on Property Rights of Women: Proposed Reforms under the Hindu Law (May 2000).
[25] Id.
[26] Law Commission of India, supra note 23.
[27] M.P. Jain, Indian Constitutional Law (8th ed., 2018)
[28] The Hindu Succession (Amendment) Act, 2005, §6.
[29] CIT v. Govindram Sugar Mills, AIR 1966 SC 24.
[30] Singhal, supra note 11.
[31] B. Sivaramayya, Coparcenary Rights to Daughters: Constitutional and Interpretational Issues, 3 SCC J-25 (1997)
[32] Prakash v. Phulavati (2016) 2 SCC 36.
[33] Id.
[34] Id.
[35] The Hindu Succession (Amendment) Act, 2005, §6.
[36] Prakash v. Phulavati (2016) 2 SCC 36.
[37] Id.
[38] Danamma v. Amar and Ors. (2018) 3 SCC 343.
[39] Id.
[40] Anar Devi and Ors. v. Parameshwari Devi and Ors. (2006) 8 SCC 656.
[41] Prakash v. Phulavati (2016) 2 SCC 36.
[42] Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788.
[43] Danamma v. Amar and Ors. (2018) 3 SCC 343.
[44] Prakash v. Phulavati (2016) 2 SCC 36.
[45] Danamma v. Amar and Ors. (2018) 3 SCC 343.
[46] Statement of Object and Purposes, The Hindu Succession (Amendment) Act, 2005.
[47] Danamma v. Amar and Ors. (2018) 3 SCC 343.
[48] Singhal, supra note 11.
[49] Law Commission of India, supra note 23.
[50] Prakash v. Phulavati (2016) 2 SCC 36.
[51] Danamma v. Amar and Ors. (2018) 3 SCC 343.
