This article is written by Dr Suresh Patil, Ph.D., Former Deputy Director, Ministry of Culture, Government of India.
In our great nation, often while one issue is resolved, yet another is born. We have such a situation in the very beginning of 2018 — thanks to latest Apex Court judgment regarding women’s share in ancestral property.
The Supreme Court in a civil appeal number 7217 of 2013 (Prakash & Ors Versus Phulavati & Ors), had already declared irrespective of the date of birth, women are entitled to equal share as per Amendment of 2005 to Hindu Succession Act of 1956 (HSA). The only condition the Hon’ble judges, Adarsh Kumar Goel and Anil Dave, had laid down was that both father and daughter should be alive on 9-9-2005 in order to claim the equal rights. This condition emanated from the very text in the Amendment of 2005 itself. Amended Section 6(3) reads as,
“Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship …”.
The Hon’ble said judges interpreted this as,
“The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case [Prakash Versus Phulavati], there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect” (P. 14 of the Judgment, 2015).
Therefore, the above judges laid down the condition that equal rights apply to ‘living daughters of living father (co-parcener)’ that too ‘on and from the commencement of the Hindu Succession (Amendment) Act, 2005’. Thus if a woman is claiming partition from her co-parcener father, he should have been alive on 9.9.2005, otherwise, she cannot claim equal rights. This landmark judgment of Supreme Court was delivered in October 2015. This was an extra-ordinary judgment because the judges had bunched nearly 14 Special Leave Petitions of similar kind. Indeed this judgment became a milestone in Indian legal history.
Many courts across the country high courts, district courts, etc. disposed of thousands of pending partition suits for property, quoting the above landmark judgment as a well settled point in law. Everybody believed that this is the final position of law, as regards women’s right in ancestral property is concerned. However, once again clouds of doubts have arisen in early 2018 with yet another judgment of Apex Court on the same matter.
On 4th February, 2018, Justice A.K. Sikri, J and Justice Ashok Bhushan in civil Special Leave Petition Nos. 10638-10639 of 2013 (Danamma Versus Amar & Ors.) delivered their judgment providing equal rights to Appellants who had been denied rights in lower courts on account of the fact that they were born before 1956 when Hindu Succession Act (1956) came into vogue.
True, in an earlier judgment delivered on 19 March 2010 at Karnataka High Court (RFA 326 of 2004, Pushplatha NV Versus Padma and Others), Justice N Kumar and Justice AN Venugopala Gowda had taken this position. They actually held that the Amendment of 2005 to HSA 1956 was retrospective in nature as it is a social legislation. However, they had put a cut-off that in order to avail equal rights, a woman should have been born in or after 1956 when the said Act came into force.
Their logic was,
“When the amending act came into force in 2005, naturally the question and doubt would arise, as to when the daughter would get that right. The parliament realized this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this ‘right is by birth’ leaving no scope for interpretation. The amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force, i.e., 17-6-1956. From that day till the amendment Act came into force on 9-9-2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9-9-2005. Though her status was so declared on 9-9-2005, she has been given right in the coparcenery property from the date of her birth. It would result in absurdity. Therefore, what the parliament did was to use the phrase, ‘on and from the commencement of Hindu Succession (Amendment) Act 2005’, as the opening words of the Section thus removing the absurdity” (RFA 326 of 2004, page 51-52).
As per this logic, Justice N Kumar and Justice AN Venugopala Gowda, concluded that women born before 17-6-1956 cannot get the benefits of Amendment of 2005. The present Supreme Court judgment of February 4, 2018, has reversed this by granting equal rights to women born before 1956 also. While doing so, unfortunately, the present judges (Justice A.K. SIKRI, J and Justice Ashok Bhushan) have apparently ignored another issue settled by Justice Adarsh Kumar Goel and Justice Anil Dave in their judgment of October 16, 2015 (above cited). These judges had concluded that Amendment of 2005 applies only to ‘living daughters of living father’ as on and after 9-9-2005. If father had died before this date, the daughters of such father would not get equal rights, though they still got a share as per earlier law.
The present 2018 case dealt by Apex Court is the one where two sisters approached the SC for the reason that they were denied rights in property for being born before 1956. Their father was one Gurulingappa from whom they claimed right in coparcenary property. Both trial court, as well as High Court, denied their right as they were born before 1956. This was in consonance with the interpretation by Justice N Kumar and Justice AN Venugopala Gowda.
On 4th February 2018, Justice A.K. SIKRI, J. and Justice Ashok Bhushan said in their judgment,
“We are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties as she would have had if it had been son” (p. 10 of the judgment).
In the instant case, the father of the Appellants (Gurulingappa) had died in 2001. Justice A.K. Sikri, J. and Justice Ashok Bhushan did not consider this fact into account and they declared that the Appellants have equal share in ancestral property of Gurulingappa. Strangely, they also quote the lines from the judgment of Justice Adarsh Kumar Goel and Justice Anil Dave (16th October 2015) – i.e., “we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born” (wordings of Justice Adarsh Kumar Goel and Justice Anil Dave at page 15 of their October 2015 judgment).
It appears that Justice A.K. Sikri J and Justice Ashok Bhushan did not take into account the earlier judgment of October 2015, which proclaimed, “Rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005”. Justice Adarsh Kumar Goel and Justice Anil Dave had taken pains to explain the text in the Amendment 2005 at Section 6(3).
It was necessary to elaborate and interpret Section 6(3) of the amended HSA 2005 wherein the statute talked about applicability after the death of coparcener-father post 2005. In order to claim equal status, the daughter has to be factually alive on 9.9.2005, and in order to settle such claim, the coparcener-father also has to be alive on that date, as a logical requirement under the amended Act 2005.
That is how amended Act 2005 became “applicable to living daughters of living coparceners as on 9-9-2005”. As things stand, the Amendment being prospective and the cut-off being at 9.9.2005, i.e., ‘on and from the commencement of the Hindu Succession (Amendment) Act, 2005’, then the blanket declaration by Justice A.K. Sikri, J and Justice Ashok Bhushan granting equal rights, without taking into account the text at Section 6(3) of the Amendment 2005, could lead to considerable chaos.
For the sake of clarity, if they did not agree with Justice Adarsh Kumar Goel and Justice Anil Dave on this point, they could have provided their own argument. In the absence of any reference to October 2015 judgment on the same issue, there would only be confusion for the judges at lower courts as well as for the common people of the country, since both these judgments continue to be valid points for disposing cases at High Courts and lower courts.
If 2015 judgment was negated, by providing necessary argument and set aside, there would have been no confusion. In which case, the judgment of 2018 would have automatically superseded 2015 judgment. However, that has not happened.
All or most of the partition suits/property suits that have been disposed of since November 2015 based on the judgment by Justice Adarsh Kumar Goel and Justice Anil Dave (dated 16 October 2015) could be re-opened or challenged in upper courts. Further, courts across the country could be flooded with thousands of property suits as this apparently opens Pandora’s Box.
No doubt practicing legal fraternity will witness busy days ahead. Judges in High Courts and lowers courts will find it perplexing — which one to follow? 2015 judgment or 2018 judgment? or both? Different High Courts and lower courts may take different views of the same issue as per their logic and there would again be different judgments. However, as far as the Apex Court is concerned, there will have to be same ruling on same issue, for the simple reason that the Apex Court is the last milestone for any legal process in India.
It appears that inevitably the Apex Court will have to interfere, and clear the ambiguity, either by referring the matter to three-judge bench of five-judge bench. As and when the matter is sorted out, dreams of those seeking justice may come true. However, until such time, ordinary people of India seeking justice will face yet another enigma.