This article has been written by Jaanvi Jolly. This article attempts to briefly examine the evolution that has taken place in the position of women in respect of their proprietary rights. It attempts to discuss the peculiar question of law in respect of the entitlement to a share of a female in the coparcenary property, both pre and post the commencement of Hindu Succession Act, 1956. It also briefly explains the concept of notional partition and the change in mode of devolution from survivorship to succession, along with a brief discussion of the Women’s Right to Property Act, 1937, Section 14 of the HSA,1956, and the Hindu Succession (Amendment) Act of 2005.

Introduction

The traditional Hindu law which governed the right of inheritance of female Hindus pulled down the string of development in regard to the fairer sex. The female occupied an extremely dependent position in the family, with her right to possess and alienate property being next to non-existent. The females were not given the status of the coparceners, however three classes of females were given the right to be entitled to a share when a partition was affected in the family between the coparceners. These were the wife of the topmost coparcener, mother and grandmother. However in case of the wife of the topmost coparcener, if her husband dies undivided from the family her right to get a share in that status was defeated as the property passes on by survivorship. This position underwent a modification by the introduction of the concept of ‘notional partition’ under Section 6 of the Hindu Succession Act, 1956. Now in case, a coparcener dies having an undivided interest in the coparcenary property, a fiction is introduced which deems that a partition was effected prior to the death of such coparcener. Although this was done to make his share in the coparcenary property available for succession to his heirs, it raised a question that whether such partition would be deemed to also have the incidental consequences of an actual partition.

Details of the case 

• Case name– Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum 
• Date of judgement– 27/04/1978
• Name of the petitioner– Gurupad Khandappa Magdum
• Name of the respondent– Hirabai Khandappa Magdum
• Bench– Honourable Chief Justice Yashwant Vishnu Chandrachud, Honourable Justice P.N Shingal and Honourable Justice V.D Tulzapurkar
• Judgement Authored by– Honourable Justice Yashwant Vishnu Chandrachud
• Equivalent Citations– 1978 AIR 1239, 1978 SCC (3) 383, 1978 SCR (3) 761

Facts of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. (1978) 

• In this case, the original suit was filed by the now respondent. The appellant husband Khandappa died on 27 June 1960, leaving behind the respondent (Hirabai) their two sons (Gurupad and Shivdas) who were defendant number 1 and 2 and three daughters who were defendant 3 to 5 in the original suit. Defendant 2 to 5 admitted her claim and only defendant 1 that is Gurupad had contested the suit and was now the appellant before the Apex court.
• On November 6, 1962, the respondent filed a civil suit in the court of the joint Civil Judge senior division for partition and separate possession of 7/24th share in two houses, land, two shops and movable properties. Her claim was based on the fact that these properties belonged to the joint family which consisted of her husband, herself and their two sons. She claimed the application of the proviso to Section 6 HSA, 1956. 
• However, the trial court gave her a limited share only up to 1/24 in the property. It rejected the appellant’s claim that the suit properties were the self acquired property of Khandappa and that they were partitioned during his lifetime. However, it followed the judgement of the Bombay High Court in Shirambai Bhimagonda vs. Kalgonda (1963) and limited her share only to 1/24th, refusing to add 1/4th and 1/24th together.
• Against the trial court’s  decree, first appeal was filed by the appellant and the respondent filed cross objections in the Bombay High Court. The Division bench increased the share and decreed the respondents claim up to 7/24th share by holding that the suit properties did belong to the joint family and there was no prior partition during the lifetime of the deceased. 
• Against the High Court’s decision, the appellant filed the civil appeal by special leave under Article 136 of the Constitution. 

Issues raised 

• Whether the notional partition envisaged by the Explanation 1 to Section 6(3)  of the Hindu Succession Act, 1956 would be considered to have the same consequences as the actual partition for the limited purpose of vesting the female with the share she was entitled to on a partition in the capacity of a mother, grandmother or the wife of the topmost coparcener or it would be limited only to calculation of the share of the deceased only with no impact on other members.

Arguments of the parties

Appellant 

• The appellant claimed that the suit properties did not belong to the joint family property and were Khandappa’s self acquired properties, therefore on his death, there was no joint family in existence, and thus the question of partition did not arise. 
• The appellant further claimed that in December, 1952 and December, 1954 Khandappa had affected a partition of the properties between himself and his two sons. Additionally, on March 31, 1955, by a deed of family arrangement, he directed the mode of disposal of the share, which fell into his hands on earlier partitions. Therefore, no question of a fresh partition arises.
• He further claimed that the notional partition effected by the statute under section 6, could not be treated as an actual partition. Thus the widow would not get the rights as she was entitled to on an actual partition taking place.

Based on the above mentioned grounds the appellant submitted that the share that the respondent is entitled to is only upon succession to the property of her deceased husband and cannot claim her share in a notional partition.

Respondent  

• The respondent claimed 7/24th share in the property of the joint family. She averred that if the partition would have taken place during the lifetime of Khandappa, between him and his two sons she would have been entitled to get one fourth share in the joint family properties along with the other three. On Khandappa’s death his share would devolve upon six people that is the respondent, her two sons and three daughters each getting 1/24 th share. Thus, adding 1/4th  which she would have got on the partition and 1/24 which the respondent would get in succession on her husband’s death. 

Based on the above claims, the respondent submitted her claim to the share both in notional partition and on succession.

Laws and concepts involved in this case

A brief history of the evolution of women’s rights under hindu law

If we examine world history, the women as a class have been on the receiving end of exploitation and deprivation. The position has been no different in India.

In the Vedic era, the position of the females was seemingly at par with the males. Married daughters without brothers and unmarried daughters were granted the right to inherit property by the law prevalent in that era. The husband and wife were regarded to be co-owners of the house and had joint possession. However, this idea was more utopian as the wife was only in actuality, given few rights and benefits like a share in money and adequate  maintenance. The downfall in the status of women began with the introduction of the concept of private property and was further degraded due to her physical incapacity as per the traditional Hindu law for the performance of religious rites and ceremonies, was argued to be a justification for her status being inferior to the males. The concept of coparcenary property being restricted only to 4 generations of males also is built on the same ideology that only a son, grandson and a great grandson can perform the ceremony of ‘pind dan’ and bring salvation to his ancestors and therefore, the property rights were limited to only those classes of people.

In the post vedic era, the discriminatory gap widened between the sexes, especially in the context of property rights. As per the Mitakshara Hindu law, females were not considered coparceners and therefore, were not granted any rights in the coparcenary property. It was assumed that the daughter would eventually be married and would move to a different family and therefore, only the male Hindu family members should receive a share in the event of partition.

During the British era, with incoming ideas of modernity, efforts were made to improve the position of women. One example would be The Hindu law of inheritance Amendment Act, 1929, that conferred the ‘heirship rights’ on the son’s daughter, daughter’s daughter and sister under the law. The next development was the Hindu Women’s Right to Property Act, 1937, where for  the first time, widows were granted the right to succeed to the share of her deceased husband in the coparcenary property, although in a limited capacity. It enabled them to succeed simultaneously with the son and take an equal share as the son. It provided that the deceased’s sons, widows, widows of his predeceased sons, his son’s sons, and son’s son’s sons and the widows of predeceased sons of predeceased sons would all succeed together. Thus, the object was not to enhance the rights of women as a class but only of the widows in particular. Further the grant of limited right was justified by stating that, in case of bestowal of absolute rights there was a chance that they would allow such estate to be spent away during their lifetime. Despite these fallacies, it did introduce far reaching changes in the law of succession by recognition of the right of females to fair and equitable treatment. 

After the coming up of the Constitution of India, every effort was made by the Constituent Assembly to remedy the injustice done to the females. The addition of Article 15(3) which falls within the purview of the fundamental right to equality and enables the legislature to formulate laws aimed to protect and uplift the women. Further Article 13 of the Constitution of India postulates that any law or legislation which is inconsistent with or which leads to denial of the fundamental rights to any individual, must be abrogated. Thus, all the traditional Hindu laws which discriminated against women clearly violated Article 14 of the Constitution and thus, had to be substituted in order to bring them in line with the constitutional ideals. 

By the Hindu Succession Act, 1956 (hereinafter HSA, 1956 for brevity) a wave of social welfare reform was brought in. It introduced revolutionary ideas of inheritance rights to females, rules allowing for testamentary disposition of estate, conversion of limited estate of females to absolute one among others. It was a consequence of the report by the Rau Committee, that the Hindu females were entitled to an absolute right over her stridhan which would devolve on her heirs as per the HSA,1956. The ground of unchastity of a widow so as to disqualify her from inheritance was also discontinued. Cumulatively, a very strengthened position was sought to be provided to the Hindu women. Section 6 of the HSA, 1956 provides for the rule of succession, even in case of coparcenary property interest. This applies where the Hindu male dies intestate having an undivided coparcenary interest and any of the females mentioned in class one schedule is alive. The ‘doctrine of succession’ was given effect to instead of ‘doctrine of survivorship’. Section 15 HSA, 1956 was legislated to specifically deal with the female succession which was a concept unheard of in the traditional Hindu law. However, the most revolutionary change was the inclusion of Section 14 (1) in the HSA, 1956. The objective of this Section was to create an absolute interest in case of a limited interest of the wife, where such limited interest owes its origin to the law as it stood then. According to the Section, any property which the female Hindu possesses whether actually or constructively, before or after the commencement of the HSA 1956, shall be held by her as an absolute owner, if such property was given to her in the limited right in lieu of her pre-existing right. In other words, the  property would convert into full ownership only if such limited interest was created in her favour in lieu of a pre-existing right,  which can be in the form of maintenance or arrears of maintenance or her share in partition. Even the property which the widow acquired under the 1937 Act, if it was in her  possession when the HSA, 1956 commenced, would convert to her absolute property.

Section 6 of the HSA, 1956 ( Pre-2005 Amendment)   

This provision of the HSA, 1956 deals with the devolution of the ‘undivided’ interest of a coparcener in the Mitakshara coparcenary property. The originally enacted provision provided for the first time, the replacement of the ‘doctrine of Survivorship’ by the ‘doctrine of Succession’. Although, such a course was envisaged to be adopted only in a conditional circumstance  as provided in the proviso to the section. As a general rule the interest of male Hindu coparcener who dies post the commencement of the HSA 1956, shall devolve upon the surviving coparceners by the effect of survivorship. The exception crafted out  by the proviso to Section 6 HSA, 1956  was provided wherein the deceased Hindu had left surviving a female relative mentioned in the Class 1 of the schedule or a male relative specified claiming through a female relative, then such interest would devolve by succession, testamentary or intestate. 

Section 30 of the HSA, 1956

This Section allows a male Hindu coparcener to dispose of his ‘undivided’ share in the Hindu Mitakshara property by way of a testament like a will. This further explains the change in position from the ‘doctrine of survivorship’ to the ‘doctrine of succession’. Therefore, now,  whenever a male Hindu dies, having an undivided Coparcenary interest, he can either dispose of such share by way of a testament or otherwise it would go via succession or survivorship as per the provisions applicable of the HSA, 1956.

Notional partition under Hindu Law

When the proviso to Section 6 has to be given effect, that is, wherein the deceased male Hindu coparcener dies leaving behind a female relative mentioned in class 1 or a male claiming through a female relative mentioned in class 1, the share of the deceased coparcener had to be ascertained. A ‘deemed partition’ is assumed to have taken place during the lifetime of the deceased immediately before his death. This was called a ‘Notional’ or deemed partition. 

By the introduction of the concept of notional partition in the HSA, 1956, it was never intended to bring about a real partition, nor did it affect the severance of status in the event of such notional partition. The right to seek partition vests exclusively with the coparceners only, it is only for specific purposes that such severance can be affected by the law, for example the notional partition, under Section 19 of the Special Marriage Act, 1954 or in case of conversion. The entire partition of the coparcenary is not provided by the explanation, otherwise, the coparcenary could never be continued, as by the death of any coparcener it  would cease to exist. Therefore, a legal fiction created in law cannot be stretched beyond the purpose for which it is created.

In the case of Vinita Sharma vs. Rakesh Sharma (2020), the Supreme Court observed that the statutory fiction of partition is short of an actual partition. It does not bring about the destruction of the joint Hindu family or the coparcenary, and the purpose of such a partition is limited to the legal fiction which provides further calculation of the share of the deceased on his death in the coparcenary property, and not to cause an actual partition. 

Right of females on partition

A partition is a process by which severance of status is demanded by a coparcener from the joint Hindu family. It comprises three essential elements which are- The formation of intention, the declaration of intention and the communication of such intention to the Karta. Under the Mitakshara law, only the coparceners are considered to have an undivided interest in the coparcenary property, and therefore, only this limited number of people have the right to seek partition. However, three classes of females were entitled to get a share when a partition was effected between the coparceners. 

Wife of the topmost coparcener: For instance, a joint family consists of F (father) , his wife (W), and two sons S1 and S2. Here in case of partition between F, S1 and S2, W would be the wife of the topmost coparcener and hence, would be entitled to a share in partition. 

Mother: For instance, a joint family consists of M (mother) and her 3 sons S1, S2 and S3. Here, if a partition takes place amongst the sons, then M would also be entitled to claim an equal share as the mother.

Grandmother: For instance, a joint family consists of GM (grandmother) and her 3 grandsons GS1, GS2, GS3. When a partition is effected amongst the three grandsons, then GM would be entitled to get an equal share as the grandsons in such partition. 

This rule of traditional law has been continued even after the promulgation of the HSA,1956. The rules relating to partition and the division of shares continue to be governed as be the traditional law as no modification to such rules has been provided in the HSA,1956.

Choosing the most suitable interpretation 

In the present case, the interpretation of Section 6, explanation 1 was open to 2 different interpretations. The first one would treat the notional partition as an actual partition to the limited effect of granting the widow the share that she would have received, had the actual partition taken place. The second one would give effect to the notional partition for the limited purpose of calculating the share of the deceased in the coparcenary property, which would be available for devolution to the heirs as per the provisions of the HSA, 1956.

Therefore, as per the Golden rule of interpretation, the interpretation must commence with the application of the Literal rule, however, when such literal interpretation leads to some kind of ambiguity, then the literal meaning must be discarded and the interpretation should be done in a way which fulfils the purpose of the legislation. As per this rule, the consequences and the effects of the interpretation must be paramount, as they act as the guiding stones to decipher the intent behind the words used by the legislature. To know more about the Golden rule of interpretation click here.

Relevant judgements referred to in the case

Shiramabai Bhimgonda vs. Kalgonda (1964) 

This was the first case dealing with the interpretation of the explanation to Section 6(3) of the HSA, 1956. The facts of the 1964 case were as follows. Bhimagonda died leaving behind his widow, one son and three daughters. Prior to Bhimagonda’s death a coparcenary existed between the father and the son. After the death, the widow filed a suit for partition and possession claiming 1/3rd share in coparcenary property, 1/15th share in succession thus, together 2/5th share was claimed. The Court examined the rule under traditional Hindu law that the maintenance and marriage expenses for the wives and daughters had to be provided from the joint family property. Now as per Section 4 of the HSA,1956 the provisions of the Act are given an overriding effect over any rule, text, custom etc in effect prior to the coming up of the Act. Thus, the provision of Section 6 HSA, 1956 has to be interpreted only to provide the limited effect as expressly provided, that is the notional partition would only be effected between the male coparceners and the the rule of mitakshara law which provided for a share in partition for the mother, wife of topmost coparcener and the grandmother stands abrogated.

Sushilabai Ramchandra Kulkarni vs. Narayanrao Gopalrao Deshpande (1975) 

In this decision the Court overruled the decision of the above mentioned case. Herein  there were only 2 coparceners, that is, son and the father that were present. Later, the son died and the partition by virtue of section 6 proviso was affected. Independent of the provisions of section 6, under the Traditional Hindu law the mother is entitled to receive a share equal to that of a son. Court held that upon the severance of the share of the deceased son, not only the son but also the mother would be entitled to 1/3th share, based on the partition between the father and son. ‘Thus, the right conferred upon a mother under the Hindu Law is not affected by any of the provisions a of the HSA 1956, as the partition is provided in Section 6 for determining the interest of the deceased coparcener.’

This view was shared in the cases of-

Rangubai Lalji vs. Laxman Lalji (1966) 

In this case, the Bombay High Court held that it cannot be rationally concluded that the legislature only intended that the partition would be limited to determining share of the coparcener and the share to which the wife would have been entitled on an actual partition would be enjoyed by the son or sons, leaving her with no means to claim it.

Vidyaben vs. Jagdischandra N. Bhatt (1974) 

In this case, the Gujarat High Court held that we need to read the proviso with the Explanation 1 in Section 6, to determine the true intent behind the inclusion of the provision by the legislature. It deems that the partition took place prior to the death of the deceased and if the partition took place at that time, undoubtedly the widow would be entitled to a share. Hence, if we calculate the shares of all persons entitled to a share in partition, it would make no sense to exclude the widow. It is inequitable and unjust to hold that just because a ‘notional’ and not an ‘actual’ partition is affected she would lose her share.

Judgement in Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. (1978)

The Supreme Court held that the view of the High Court that the suit properties were the joint family properties and there was no prior partition was well-founded and was not seriously disputed. Therefore, the decision had to be made only as to the interpretation of Section 6 explanation one of the HSA 1956. The question which arose in the present case was whether the widow can take her share in the notional partition and succession and separate from the joint family when such partition is deemed on the death of a male Hindu coparcener. In other words, whether the share calculated in the coparcenary property on notional partition on the husband’s death would become her separate property or not. The court examined the position of law existing prior to and post the HSA, 1956.

Pre 1956 position 

A female Hindu was granted a right to seek a share in partition whenever it happened. If she occupied the position of either the wife of the top most coparcener or mother or grandmother. However, she was not entitled to claim partition as that right belonged only to the coparceners.

As for the Hindu Women’s Right to Property Act, 1937, the Hindu widow was entitled to the possession of the property in lieu of maintenance, but with the grant of a limited interest the basic purpose of the Act was to ensure that a Hindu widow after the death of her husband should not be dependent on others for her basic needs. Therefore, to strengthen her economically and to make her capable enough to take care of herself, the law was legislated to secure her maintenance rights only and was not intended to provide her any substantial ride in the property itself. After her death, the property would revert back to the reversioners who would be the coparceners in the joint family property. 

Post 1956 position

The right that the females had in the capacity of the wife of a top post to personal or as a mother or as a grandmother continued, even after the commencement of HSA, 1956 whenever a partition took place in the family. However, the HSA, 1956 introduced a new concept of notional partition which created a legal fiction in order to calculate the share of the deceased person in the coparcenary property. This was put in place in order to make that property available for devolution under the provisions of the Act. This would however, only be necessary in case the conditions mentioned in Section 6 proviso were satisfied.

Further, in answering the question, the Court explained that the main aim of the HSA 1956 was to do proprietary justice by enlarging the share of the females, both qualitatively and quantitatively. It also went behind the legislative intent in introducing the concept of notional partition. The main purpose of the concept of notional partition was to create property rights for the woman in the joint family property by enabling them to succeed to such shares of a male Hindu, as per the provisions of the Act in the capacity of class one heir. 

Where two interpretations are possible, the one which furthers the legislative intent behind the section must be preferred. The females couldn’t have claimed partition by herself, but when partition takes place all the consequences, which flow from the real partition must be considered to be worked out. The shares of the heirs were ascertained on the basis of the rules followed in an actual partition, deeming that they have separated from one another and have received the shares by the partition which took place during the life of the deceased. Therefore, the resultant effect is that the shares of all the heirs which they would have got in the undivided property are calculated, including the share which the widow. This share of the widow would vest in her and she has a right to take this share calculated by the notional partition and separate from the family. Therefore, the court concluded that, if any other interpretation is accepted, then it will not serve the purpose of the Act which was to enhance the property rights of the females.

Rationale behind this judgement

A Hindu coparcenary is a much narrower body than a joint Hindu family. A joint Hindu family or ‘Kutumb’ consists of all the people lineally descended from a common male ancestor and includes their wives and unmarried daughters. On the other hand, a coparcenary is a creation of law, wherein male descendants 4 generations from the last male holder have a birthright in the property. 

The Court considered that since Khandappa had died in 1960, that is after the commencement of the Hindu succession Act, 1956, and had an undivided interest in Hindu joint family property the prerequisite for the application of Section 6 were satisfied. In this case and as a general rule, his interest in such coparcenary property would devolve by survivorship upon the other coparceners. However, here the Court checked the application of the proviso to Section 6, which excludes the rule of survivorship for succession in case the deceased male Hindu leaves behind surviving him any female relative mentioned on the class one or a male claiming through such female. In the present case, since the widow and the daughters of the deceased were in existence, the proviso would come into play and the normal rule would be excluded. Therefore, the interest of the deceased in the coparcenary property would devolve as per the provisions of  Section 8 to Section 13 upon the class one heirs, mentioned in the first schedule. 

Next, the Court considered the implication that the interpretation of explanation 1 to Section 6 would have. Since it is an explanation, it has to be read in consonance with the provision of the Section and has to be correlated to the subject matter of the main Section.

In the instant case, the claim by the widow was made to obtain a share in the interest which her husband had at the time of his death in the undivided joint family property. The Court stated that two things have to be determined before the plaintiff can be granted with any relief. Firstly, her share in the husband’s share and secondly the share of the husband himself in the property. This calculation has to be made as per the explanation one. To calculate the share of the respondent in her husband’s property the provisions of Section 8 to 13 will have to be examined. The deceased had left behind his widow, three daughters and two sons. All six of them were mentioned as class one heirs in the schedule and as per the provision of Section 9, all of them would take the share simultaneously. Further as per Section 10 Rule one and Rule two each has one share in the deceased’s property. They would all take equally and simultaneously. Therefore, whatever the share of the deceased was in the coparcenary property, the widow was entitled to 1/6th of that share.

Once the share of the widow in her husband’s properties is calculated, the next step is to calculate what was the exact share of the husband in such coparcenary property. Explanation one creates a legal fiction, which in effect deems that had a partition taken place immediately before the death of the deceased, what would his share be in the coparcenary property. Now, the same share would be granted to him by this notional partition and would be available for  devolution as per the provisions of the Act.

The respondent herein was the widow and hence, could not be the coparcener which means that she was not entitled to demand partition. However, if a partition took place between her husband and her sons, she would be entitled to receive an equal share in the partition as a mother or as the wife of a topmost coparcener. Thus, applying the rule of notional partition to the present case had a partition taken place prior to Khandappa’s death, his two sons and himself would have been entitled to a share as coparceners and the respondent would have been entitled to share as the wife of a topmost coparcener. This would entitle her to 1/4 share in the coparcenary property. Therefore, firstly, the respondent would have one fourth share at the time of the partition and secondly she would also have 1/6 share as a class 1 heir in the 1/4th  share which was allotted to  the deceased by the notional partition which would be equal to 1/24. 

There is no controversy as to the 1/24 th share which she was entitled to receive in succession. The question, however remains whether she would be entitled to the 1/4th share in the notional partition, as she would have been entitled to if there had been an actual partition during the lifetime of the deceased. That is whether, the effects of an actual partition would also also follow in case of a notional partition?

The fiction which is created by the explanation has to be given its full effect. The court quoted this passage from the case of East and dwellings company Ltd vs. Finsbury Borough Council (1951), “ if you are Biden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents, which if the putative state of affairs had in fact existed must inevitably have flown from or accompanied it, and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done, so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs”

Explanation one uses the words ‘shall be deemed to be’ the share in property that would have been allotted to him, had the partition taken place immediately before his death, once an assumption of a partition has been made that becomes irrevocable, which means that if the assumption is made for the purpose of calculating the share of the deceased in the joint family property, we cannot go back on that assumption when it comes to calculation of the shares of other heirs and the fact of partition must affect the process of ascertainment of the final shares. We cannot let the assumption be available only at the initial stage to ascertain the share of the deceased and then let it vanish when it comes to calculation of the shares of the heirs. Therefore, all consequences that flow from a real partition have to be given effect to as if they had separated from one another and received the share in the partition which took place during the lifetime of the deceased as a concrete reality.

This interpretation would be in line with the legislative intent, which was behind the enactment of this provision, the entire HSA, 1956, at every step aims to enlarge the share of the females. 

Analysis of the case 

The decision of the Supreme Court on this issue was also reaffirmed and reiterated in the landmark case of Vineeta Sharma vs. Rakesh Sharma (2020). The Court also stated that even if we assumed that two interpretations of the provision are possible. First being the one in which the notional partition is restricted in its effect to only calculate the share of the disease coparcener and not given any extended consequences. The second one where in the notional partition is treated as an actual partition and the widow is given the same share, as she would have received in case an actual partition took place prior to the deceased’s death. If we consider the first view to be correct, that would rob the widow of the share, which she was entitled to get on partition. The only negatively affected individual in such interpretation would be the widow as, although she has  been given the right to get a share when a partition takes place, she is not entitled to claim such partition.Now she would have to wait, in order to receive her share, for her sons to partition within themselves, and then she would receive a share as a mother. Whereas, if we adopt the second and the more purposive interpretation and uphold the entitlement of the widow to a share, even in the case of a notional  partition, it would indubitably further the legislative intention and the constitutional mandate to remedy the injustice faced by the females.

Conclusion 

The ratio of the present case was furthered and reiterated in the case of State of Maharashtra vs. Narayan Rao (1985). It was observed that the rights of the female to the interest inherited by her gets fixed and vests in her which is determined on the death of the male coparcener of the family under Section 6 of the HSA, 1956 and the female member of the joint Hindu family would continue to be a member of the family, even though her individual share has been calculated when she is inheriting the interest of the deceased male of the family, she would only cease to be a member of the family when she chooses to become separate by partition.

These lines of judgements clearly present the enlightened view of the court to further the rights of females in every sphere. These decisions acknowledged the importance of proprietary and economical independence. We must however be cognizant of the fact that the legislature can only provide legal sanction for these rights, the real test would lie in the social acceptance of these entitlements. The females may be impliedly coerced into relinquishing these rights for the sake of protecting family ties. This reality of Indian society was acknowledged by the Apex Court. In the case of Vinita Sharma vs. Rakesh Sharma, the court noticed that, post commencement of the Hindu Succession (Amendment) Act, 2005 by which the daughter was made a coparcener. Innumerable bogus partitions were claimed to have taken place prior to 20th December, 2004 which was the cut-off date before which any partition which would have taken place would not be affected by the Amendment. This was done only to exclude the daughter from any proprietary rights in the property. In these instances it was their own families that resorted to such tactics to defeat their rights. Therefore, to enable the females to reap the benefits of such remedial and reformative laws, a sociological and psychological revolution needs to follow these social welfare legislations, which would bring about an acceptance of the principles of equality and fair treatment of females.

Frequently Asked Questions (FAQs)

What changes have been introduced by the Hindu Succession Amendment Act, 2005 which further enhances the rights of the females?

The following are the changes brought about by the said Amendment-

1. By the virtue of Section 6, on and from the commencement of the Amendment, the daughter of a coparcener was also made a coparcener in her own right in the same manner as a son and was entitled to receive the same share as the son.
2. Subsection (2) of Section 4 was also omitted by the Amendment which prevented the application of the HSA, 1956 on the agricultural holdings and its devolution in order to prevent fragmentation; it basically seeked to keep the agricultural property consolidated. 
3. Section 23 was also omitted by the said Amendment which provided for a special provision in reference to the dwelling houses. Any female who inherited some interest in a dwelling house as a class one heir on the death of an interstate was not allowed to claim partition of such house until the male heirs decide to divide their shares. Even the limited right of residence was given only to a daughter who was unmarried or was deserted by her husband and a married daughter was given absolutely no right whatsoever after the Amendment. This restriction has been abrogated.

References

• http://dx.doi.org/10.2139/ssrn.4407565
• Mulla principles on Hindu Law 22nd Edition 

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.