This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the historical aspect of the Hindu Succession Act and the changes brought by the 2005 Amendment, thereby providing various case laws to establish the prolonged change in the patriarchal society in relation to daughter’s equal rights.
Table of Contents
In Hindu society, the Hindu families are living in a state of the union unless any contrary is established. Members of the Hindu family are presumed to be ordinarily joint and undivided in food, worship and estate. Hence, it is essential to understand the concept of the joint Hindu family and coparcenary. The concept of the right to property has evolved through time by bringing change in the patriarchal reign. The landmark judgement mentioned in the article provides equal coparcenary rights in Hindu Undivided Family properties regardless of whether their father was alive or not on the passing date of the amended provision.
India being a conservative country, bore the zeitgeist concepts of the traditional joint Hindu family. Joint Hindu family is a unit comprising individuals related by blood, sharing the same roof, food and worship and common ownership of properties for the continuation of the family and its prosperity. This concept is well practised by the Mitakshara School of Hindu Law and known as coparcenary. Coparcenary comprises the propositus who is from a male ancestor and consist of three lineal male descendants i.e., four generations. These properties owned by the coparcenary are known as coparcenary property. In ancient times, coparcenary interest in a joint Hindu family was limited to only male lineal descendants. The concept of joint Hindu family and coparcenary property is mentioned in the Hindu Succession Act, 1956 (HSA). The HSA deals with matters of succession and recognizes the concepts of coparcenary interest. The male lineal has the right over the property by birth, if the coparcener dies the property inherited is shared through survivorship by remaining coparceners.
The historical Hindu Succession (Amendment) Act, 2005
The Hindu Succession (Amendment) Act, 2005 provided the daughters of a coparcener with the same rights in the coparcenary property as the son. The objective behind the amendment was to change the patriarchal mindset, remove gender discriminatory provisions in the Hindu Succession Act of 1956 and provide equal status to the son and the daughter of a Hindu in matters relating to inheritance to coparcenary property. While this amendment brought changes in recognizing the daughter’s rights, however, there were several loopholes in the interpretation of the amendment. Various issues have been raised before the judiciary in order to provide a precise interpretation of the amendment. The following cases are the latest development:
Prakash and Ors v. Phulavati and Ors, 2016
In Prakash v. Phulavati and Ors., 2016, the Supreme Court held that the Amendment Act was prospective in nature. Hence, from the passing date of the Amendment Act, the daughters would be coparceners and have an equal share same as that of sons in a joint Hindu family property. The following points should be noted from this case:
- The daughter must live in 2005 in order to claim a share in the joint Hindu family property.
- In case, if the daughter dies before the enactment of this amendment act, her legal heir cannot claim a share in the joint Hindu family property.
- The daughter’s father should also be alive during the time of the enactment in order to provide an equal status in the coparcenary property.
- The amendment act would not affect the alienation or disposition or transfer of any joint family property or a registered partition before the amendment act and it would not be affected by the daughter’s claim as a coparcener in the joint Hindu family property after 2005 Amendment.
Lokmani v. Mahadevamma & Ors., 2016
In the case of Lokmani v. Mahadevamma, 2016, the High Court stated that Section 6 of the amended HSA is given retrospective effect as when the daughters were denied right in the coparcenary property, pending proceedings and appeals re to be now decided as per the amended provisions and inequality has been removed. The High Court also stated that the oral partition and unregistered partition deeds are removed from the definition of ‘partition mentioned in the amendment Section 6(5) of HSA.
Danamma v. Amar, 2018
In Danamma v. Amar, 2018, a two-judge bench held that the two daughters would get a share in the property, even though their father had passed away before the Amendment Act, 2005. However, there was a need to solve the conflicting above-mentioned judgements by the courts.
The landmark case of daughter’s right to property
A three-judge bench took notice of the conflicting judgement to settle the law. In the case of Vineet Sharma v. Rakesh Sharma & Ors., 2018, the Supreme Court stated that Section 6 of the Hindu Succession Act provides an unobstructed heritage by birth to the daughter. Thus a coparcener’s father need not be alive on 9 September 2005. The court also stated the following, “Coparcener’s right is by birth. Thus, it is not all necessary that the father of the daughter should be living as on the date of the amendment act 2005, as she has not been conferred the rights of a coparcener by obstructed heritage”. Hence, the daughter can only claim her rights from the date of the amendment and any transaction in relation to the property will not be affected according to the amended Section 6(1) of the HSA.
Further, the court explained Section 6(5) of the HSA which states partition only by the virtue of registered partition deed or partition effected by a decree of the court, hence, the court can take notice of the oral partition in exceptional cases only based on long-standing evidence in the form of clear public documents. Also, the court directed that the significantly delayed due to the conflicting decision earlier by the High Court and subordinate courts needs to be disposed of involving the same subject matter for dispute within six month. Moreover, this case mentions an essential point on the intent of Section 6 of HSA as it was neither to benefits female successors prospectively nor retrospectively, but its main intent was to confer benefits retrospectively. While stating the amendment act to be retrospective, it was held that it confers female successors the benefit of succession on par with that of her male counterparts based on their birth in the Hindu family.
Statutory fiction of partition
Section 6 of the HSA states the concept of statutory fiction of partition as a complex mechanism to ascertain the rights of a man’s surviving family members if he dies leaving behind only a female relative in Class I of the Schedule such as a daughter, widow, mother etc. In such a case, the earlier law stated that the said property should be shared or calculated by imagining that a partition took place immediately before the man’s death and hence, women did not have any share in the coparcenary property. In the present scenario, the court held that the concept of ‘statutory fiction of partition did not entail an actual partition and thus any statutory fiction of property taken place before the amendment act is not valid and the new provision will have to be implemented on all the pending proceedings or appeal. Further, the court noted that the matter is already delayed due to the conflicting decisions and the daughter cannot be deprived of their rightful right of equality in their ancestral property conferred upon them by Section 6. Hence all the pending cases and appeals should be decided within six months.
Comparison between Hindu Undivided Family (HUF) property and Hindu Joint Family (HJF) property
Hindu Joint Family
- It is a fundamental concept of the Hindu family law governed by the Hindu Succession Act, 1956. It is a going-on process, and it is brought to an end employing a partition.
- In Rukhmabai v. Lala Laxmi Narayan, it was observed that the family continues to be a joint family if it is undivided in food, worship and estate.
- In Chhotey Lal v. Jhandey Lal, it was held that a joint Hindu family is neither a corporation nor a juristic person as it has no separate legal entity from its members.
- The Karta is the head of the HJF and all the decisions are taken solely under its authority.
Hindu Undivided Family
- It is an integral part of Hindu society and is evolving on the basis of customs. The main requirement is the jointness and the part that a Hindu is born as a coparcener of the family.
- It is governed by the Income Tax Act, 1961, which states that a HUF as a ‘person’ and it is an entity separately assessed to tax, separate from its Karta, coparceners and members.
- In order to run its own business, it may receive gifts and profits generated from such business will be the separate income of the HUF.
- It also holds capital assets and is capable of earning rental income.
- Individuals can also use HUF as a tax planning strategy.
Coparcener and member
A coparcener is a person who acquires interest in the joint Hindu property by birth. The comparison between a coparcener and a member of a HUF is that a coparcener can enforce the partition of the HUF and a member cannot enforce it. It consists of a daily with a common ancestor and all the lineal male descendants with their wives and unmarried daughters. Coparcenary property is the one that is inherited only by a Hindu man from his father, grandfather, or great grandfather. However, after the 2005 Amendment to the Hindu Succession Act, 1956, vital changes have been brought to Section 6 of the Hindu Succession Act. Before the amendment, only the male member was regarded as coparceners whereas daughters attained the status of members on birth and not coparceners. Now, both the male and daughter are coparceners of their father’s HUFs on birth, having equal rights as sons in the properties of the HUF.
Women as Karta
Earlier a woman was not a coparcener, thus could not be a Karta of a HUF before the 2005 amendment. However, now the woman is on the same footing as that of the male descendants and there remains no reason for her not to be the Karta. In the case of Mrs Sujata Sharma v. Shri Manu Gupta, 2011, the court stated a clear and unambiguous interpretation to the object and goal of the Amendment of 2005 by extending to not only including Hindu woman as coparceners but also recognising the eldest coparcener of the HUF and it can also include a woman as the Karta of that HUF and its properties.
The concepts of Hindu law was based on the prolonged practices favouring by the patriarchal society consisting of the concepts of HJF, HUF, coparceners, Karta, etc. with the advent of the 2005 Amendment Act especially with the enforcement of the Hindu Succession Act, 2005, the legislations have tried to bring changes by putting women at par and extending the equal rights to women in the society. The recent judgement provides clarity on the object and scope of the amended Section 6 of the HSA and resolves the ambiguity and dubiousness in the interpretation of the said section in relation to the conflicting judgements passed earlier by the Supreme Court. The verdict passed by the court deserves appreciation for achieving the aim of gender equality and gender justice. The judgement would also impact the pending ligation where the coparcenary property is the subject matter of the dispute and provide a speeding remedy.
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