1. The amendment of 2005 to Hindu Succession Act is a cauldron of confusions and inconsistencies. This might be because of factors such as imperfect language used in the amendment , inconsistent judicial interpretations and also injustice resulting to wife of the coparcenor.
2. Historical background:
Before the enactment of the Hindu Succession Act, 1956, Hindus were covered by Shastric and customary law which varied from region to region. Dayabhaga school of law was prevalent in Bengal and the adjoining areas. Mitakshara school of law was prevalent in the rest of India. Under the Mitakshara School of Hindu Law, woman in a joint Hindu family had merely a right of maintenance/sustenance but had no right of inheritance to property. The basis of Hindu joint family was a common male ancestor and the properties of the family were held as a coparcenary property with male member of the family having a right to the property by virtue of birth and their interest in the coparcenary property would keep varying depending upon the death or a birth of a male in the joint Hindu Family. The property of a male coparcener on his death used to pass by survivorship in the Mitakshara School of Hindu Law. No female was a member of the coparcenary though, she was a member of the joint Hindu family. The coparcenary would normally consist up to four degrees i.e. the common ancestor (coparcener), his son, grandson and great grand son.
3. Under Dayabhaga School of Hindu Law, the daughters also got equal share along with their brothers. The property was transmitted by Succession and not by Survivorship and there was no concept of a coparcenary property and every member of a Hindu family would hold property in his/her own right and was entitled to dispose of the property as he/she deems fit either by gift or Will.
4. The Constitution of India came into force on 26 January 1950. Articles 14, 15(2) & (3) and 16 of the Constitution of India removed discrimination against women and made equal treatment of women a part of the fundamental rights. To achieve this objective, the Parliament enacted the Hindu Succession Act, 1956. The Principal Act did not provide any rights to the daughters of the partition of the property or any rights to demand partition of the property or even claim a share in the coparcenary property. The only right of the daughter would be to get a share in the father's share in the coparcenary property and the same would arise only on the death of her ancestor -coparcener
5. Though the Act says it is enacted to amend and codify the law relating to intestate succession among Hindus and gave rights of testamentary disposition to Hindu males in respect of his properties including his coparcenary share, Section 6 retained substantially the Rule of survivorship. This Section also provided that the right of male Hindu at the time of his death in the coparcenary property will devolve by survivorship. However, the proviso provided that if the deceased coparcener has any female relatives specified in Class I of the Schedule to the Act, then the property will devolve by succession.
6. The Law Commission submitted its 174th report in May 2000. The Commission called for gender reforms to ensure equality. The Commission also took note of the steps taken by Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka to bring about the gender equality. The Commission recommended that the daughter should be made coparcener by birth and that she should be entitled to get a share on partition and/or on the death of the male coparcener.
7. The resultant position was Act 39 of 2005 which came into force on 9 September, 2005 conferring the status of coparcener on the daughter by birth and share in the ancestral property. Married daughter were also included. However, the amendment excluded disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004, the date of introduction of the Bill in Rajya Sabha.
8. Amended Section 5 is extracted here :
6. Devolution of interest in coparcenary property.—(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—(a) by birth become a coparcener in her own right in the same manner as the son;(b) have the same rights in the coparcenary property as she would have had if she had been a son;(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of her by testamentary disposition.(3) 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 survisorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—(a) the daughter is allotted the same share as is allotted to a son;(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, or such son, grandson or great-grandson to discharge any such debt:Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall effect—(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.Explanation.—For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.Explanation.—For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.
9. Immediately after the amendment, the question regarding prospective or retrospective operation of the amendment cropped up before few high courts. One set of argument was that in the absence of express provision or implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. If a coparcener had died prior to the commencement of the Amendment Act, succession opens on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystallised even if partition by metes and bounds does not take place and that the amendment cannot re-open the partition. The counter argument was that the amendment being piece of social legislation to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.
10. The division bench of the Karnataka High Court in Pushpalatha N.V. v. V. Padma, ILR 2010 Kar 1484 took the view that the amendment is retrospective in its operation. The court held that the status of a coparcener is conferred on the daughter on and from the date of the commencement of the Amendment Act and the right is given to her by birth. However the Court said, to be eligible under the amended section, she must have born after 17:6:1956, the day on which the Act came into force. Therefore, the court said by substituted Section 6, the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara Law has been conferred the status of a coparcener by birth and conferred same rights in the coparcener properties as she would have had if she had been a son. Simply put, the Karnataka High Court held that a woman is conferred with coparcener status by birth provided she was born after the Hindu Succession Act 1956 came into force. The Court also held that the woman would get a right in ancestral property "on her own" whether her father is alive in 2005 or not.
11. The interpretation of the amendment came up for consideration before full bench of the Bombay High Court in Badrinarayan Shankar Bhandari and others vs Omprakash Shankar Bhandari decided on 14 August 2014. The Bombay High Court framed, inter alia, the following questions for consideration.
"(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation? (b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17:6:1956? (c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17:6:1956 and prior to 9.9.2005? (d) Whether Section 6 of the Hindu Succession Act,1956 as amended by the Amendment Act,2005 applies only to daughters born after 9:9:2005?"
12. On question (a), the full bench held that, bearing in mind the words 'on and from commencement of the Hindu Succession Act, 2005' found in Section 6, the rights under the amended Section 6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act 2005. The Court held that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. The court didn't make distinction between the daughter born before 1956 or after 1956. The only requirement, the court held, is that when the Act is being sought to be applied, the person concerned must be in existence/ living.
13. While the Karnataka High Court held that by substitution the amended provision is there in the principal Act from 1956 itself and that the daughter born after 1956 is conferred coparcener status "retrospectively" by birth, the Bombay High Court held that the daughter is conferred coparcener status only with effect from 9 September 2005. However, by construing the amended section "retroactive" in operation, the Bombay High Court held that the Amendment Act applies to daughters born even before 1956 provided daughter is alive on the date of coming into force of the Amendment Act.
14. On questions (b), (c) and (d), the Bombay High Court held that the amended Section 6 applies to daughters born prior to 17 June 1956 or thereafter, provided they are alive on 9 September 2005 that is on the date when the Amendment Act of 2005 came into force and that undisputedly the amended Section 6 applies to daughters born on or after 9 September 2005.
15. On the interpretation of the proviso to section 6(1) (saving partitions of property which had taken place before the 20th December, 2004), Both Karnataka and Bombay High Courts relied on Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 that a preliminary decree determines the rights and interests of the parties and that the suit for partition is not disposed of by passing of the preliminary decree and that it is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds.
16. Another division bench of the Karnataka High Court in Phulvati vs Prakash (AIR 2011 Kar 78) followed the judgment in Pushpalatha N.V. v. V. Padma, ILR 2010 KAR 1484. This judgment was challenged before the Supreme Court. The Supreme Court rendered its judgment in Prakash v. Phulavati in 2015.
17. The Hon'ble Supreme Court in Prakash v.Phulavati held that that the right conferred on a "daughter of a coparcener" is "on and from the commencement of the Hindu Succession (Amendment) Act, 2005". The Court noticed absence of an express provision for giving retrospective effect to the amended provision. The Court held 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. It also held that disposition or alienation including partitions which may have taken place before 20:12:2004 as per law applicable prior to the said date will remain unaffected.
18. The confusion.
The subsequent judgment of the Supreme Court in Danamma v. Amar created confusion for, it granted share in ancestral property to a daughter under the amendment even though the father died in the year 2001. As a matter of fact, in the first paragraph itself the Supreme Court takes note of the fact that father Gurulingappa Savadi died in the year 2001 leaving the daughters. However, the Supreme Court granted share to daughters even in the ancestral properties. At the same time, the Supreme Court relies on Prakash v. Phulavati in paragraphs 21 and 23 with approval.
19. Danamma vs Amar resulted in insinuations as though the earlier decision in Prakash v. Phulavati was impliedly overruled. Several suits were instituted on behalf of daughters claiming right in ancestral properties though the father died much before 2005. Few suits were even decreed.
20. It is respectfully submitted that Danamma case in so far as it grants share to women in the ancestral property of the kartha who died prior to 2005 amendment proceeds on a mistake.
21. The judgment in Danamma v. Amar was later clarified in Mangammal v. T.B. Raju, (2018) 15 SCC 662. The Supreme Court in Mangammal declared that Prakash vs Phulvati would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, the Supreme Court reiterated that only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
22. The declaration of law in Prakash vs Phulvati, the confusion created by Danamma v. Amar and the later clarification in Mangammal v. T.B. Raju was taken note of by the Delhi High Court while delivering judgment in RFA 301/2017. The High Court granted certificate of fitness to appeal. The Supreme Court has now referred the issue to a larger bench in Vineeta Sharma vs Rakesh Sharma. It may be noted that all the three judgments aforesaid are rendered by the bench of two judges.
23. Few questions left unanswered:
1. Whether the female coparcener who acquires ancestral property under the amended Section 6 takes it absolutely or whether her children acquire a share in such property by survivorship and sue her for partition of such property?
2. Whether the coparcenary system continues even in female coparcener family.?
3. What is the status of a transgender vis-à-vis amendment to Section 6 of the Hindu Succession Act?
On questions 1 and 2, there are indications to contend both ways i.e the female getting the property absolutely and also that her children getting share in such property by birth and sue her for partition of such property. The following extracts from the amendment support the view that the property acquired by the female under the amended Section 6 is available for partition in the hands of her children by survivorship
(a) the daughter of a coparcener shall, by birth "become a coparcener in her own right in the same manner as the son"
(b) have the same rights in the coparcenary property as she would have had "if she had been a son"
(c) be subject to the "same liabilities" in respect of the said coparcenary property "as that of a son"
(d) any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her "with the incidents of coparcenary ownership"
24. These words clearly indicate continuance of coparcenary system even female's family. The coparcenary system comes to an end only under sub-section (3) if female gets the property "after" the death of the coparcener. However, there are no such indications when it comes to coparcenary property acquired by female in a family partition after the amendment.
25. One can invoke Section 14 of the Act to confer absolute right on the female in the ancestral properties acquired in a family partition as above said. However, the words "notwithstanding anything contained in this Act, or any other law for the time being in force", may oust applicability of Section 14. The words "as property capable of being disposed of her by testamentary disposition" refers only to her share.
26. A categorical declaration in this regard is needed. Several suits are already being filed by the children of female coparcener seeking partition. Few courts have dismissed such suits invoking Section 14. The issue has not reached any High Court so far.
27. On the second question i.e. rights of transgender under the amendment, it is to be noted that karta being alive 2005 is not a necessary condition for a son to get ancestral property under the 2005 amendment. However, for a female coparcener, this is a necessity as declared by the Hon'ble Supreme Court in Prakash vs Phulvati. If the transgender chooses her sex as male, the embargo under the amendment won't apply.
(The author is a Bangalore-based advocate and a Member of Karnataka State Bar Council. The author may be reached at [email protected])
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]