“He, who has a why to live for, can bear with almost any how.”    Friedrich Nietzsche

The Constitution of India grants rights to every Indian citizen, especially in the shape of fundamental rights, irrespective of his caste, creed, gender, and race, for his protection, assertion, defence, and livelihood. Articles 14, 15, and 16 of the Constitution not only deter discrimination against women but also, in appropriate circumstances, provide a free hand to the State to implement protective discrimination, especially in favour of women. Despite the equality so guaranteed by the Indian Constitution, and other laws, women in India were not entitled to any share in the property held by a male, in earlier times.

In older times, much before the enactment of any codified law for the governance of Hindu property and much prior to the adaption of the Constitution of India, the property of a Hindu male was inherited by males only. Though there are adequate proofs in the historical Vedas and commentaries which justify that women were capable of holding property, however, they were not given any such rights. Moreover, the transactions carried out by them were considered to be without any legal recognition and were often subjected to custom. The property held by a Hindu woman was bifurcated into Stridhan and Non-Stridhan. The former was further divided into Saudayika and Non-Saudayika. While a woman had absolute rights over her Stridhan(Saudayika) property, she only had a limited right with regard to other properties held by her.

Before the enactment of the Hindu Women’s Right to Property Act 1937, women were not entitled to a share in the joint family property, and succession was governed by survivorship. As per the rules of survivor ship, on the death of a member of a joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which included only the male members of the family. Thus, prior to 1937, there were no codified laws to deal specifically with the Hindu woman’s right to property. Where disputes arose, they were settled in accordance with the customary practices.

The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. With the introduction of the Hindu Women’s Right to Property Act, 1937, the widow of the deceased husband now had a right to her husband’s property after his death. Unlike previously, where the property was divided among the surviving coparceners by the doctrine of survivorship, now it was the widow who had the sole right to such property. However, she only had limited rights (popularly called “limited estate”) over such property, which remained with her till her death. The said enactment, which was passed after much voicing of discontent over the unsatisfactory condition of women’s rights, came as a huge protection for women who were widows and were left unprovided for with nothing after the death of their husbands. The act clearly lays down that it shall be applicable only to cases where no testament regarding succession has been made by a Hindu male and he dies intestate. The intent of the said act was only to provide protection to widows by recognising their right to a limited estate even after the death of their husband. The rights and protection offered under the 1937 Act were not only to the widow of the deceased but also included the widow of a predeceased son and also the widow of a predeceased son of a predeceased son (widow granddaughter-in-law), but no other female, including a daughter, was included in the ambit of the said act. The said law was made applicable to all schools of Hindu law, including Dayabhaga and Mitakshara.

Section 3 of the 1937 Act, deals with the devolution of property. It lays down that “Devolution of property:-

(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.”

Though the said Act nowhere defines the word “property” and a cursory reading of section 3 clearly shows that the equal property as to a son, were given to the widow, predeceased son’s widow and predeceased grandson’s widow, but when the said Act came into force then the same was voiced opposition and resentment on the ground that agricultural land cannot be said to be included in the said Act, and no limited right in the agricultural property can be said to be given to a widow woman on that accord.

The said conflict about exclusion of agricultural land from the purview of 1937 Act, was settled by a decision of Federal Court in AIR 1941 Federal Court 72.

The following questions were considered by the Federal Court:-

“(1) Does either the Hindu Women’s Rights to Property Act, 1937 (Central Act, 18 of 1937), which was passed by the Legislative Assembly on 4th February, 1937, and by the Council of State on 6th April 1937, and which received the Governor-General’s assent on 14th April 1937, or the Hindu Women’s Rights to Property (Amendment) Act, 1938 (Central Act, 11 of 1938), which was passed in all its stages after 1st April 1937, operate to regulate (a) succession to agricultural land? (b) devolution by survivorship of property other than agricultural land?

(2) Is the subject of devolution by survivorship of property other than agricultural land included in any of the entries in the three Legislative Lists in Sch. 7, Government of India Act, 1935?”

The observations of the Federal Court relevant for the present purposes were:-

“……….After 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of Sch. 7, Constitution Act, so far as the Governors’ Provinces were concerned. Laws with respect to the “devolution of agricultural land” could be enacted only by the Provincial Legislatures (entry No.21 of List II), and “wills, intestacy and succession, save as regards agricultural land” appeared as entry No.7 of List III, the Concurrent List. Act 18, read with the amending Act of 1938, endeavoured to improve the position of Hindu widows in two classes of cases (a) where by the operation of the principle of survivorship the widow is excluded from enjoyment of the share of her husband in property which he held jointly with other coparceners; and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any share in her husband’s estate by reason of the existence of sons, grandsons or great-grandsons of the deceased who under the law take in preference to the widow. Provision is also made for securing a share to a widow even in cases where her husband had pre-deceased the last male owner (S.3 (1), first proviso). The Act purports to deal in quite general terms with the “property” or “separate property” of a Hindu dying intestate, or his “interest in joint family property”; it does not distinguish between agricultural land and other property and is therefore not limited in terms to the latter.“

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The questions were answered by the Federal Court as under:-

“……(1) The Hindu Women’s Rights to Property Act, 1937, and the Hindu Women’s Rights to Property (Amendment) Act, 1938, (a) do not operate to regulate succession to agricultural land in the Governors’ Provinces; and (b) do operate to regulate devolution by survivorship of property other than agricultural land.

(2) The subject of devolution by survivorship of property other than agricultural land is included in entry No.7 of List 3, the Concurrent List.“

The said decision of the federal court lays down that the Act of 1937 shall not apply to or include agricultural land. Thus, what was welcomed as a revolution for the protection of widows’ rights was held to be available only for granting limited rights in properties other than agricultural land.

After the said decision, many states, like UP, Bihar, Maharashtra, and a few others, amended the 1937 Act and passed an extension bill in order to make the 1937 Act applicable to include agricultural land in its ambit.

However, there were many States, including the erstwhile Punjab, where no such extension to include agricultural land was provided. The decision of the Federal Court (Supra) was also considered by a Division Bench judgement of the Punjab and Haryana High Court in Hari Dass v. Hukmi, 1965 AIR (Punjab and Haryana) 254. The Division Bench was seized of the matter arising out of a decision by a Single Bench of the High Court whereby the suit filed by the appellant therein was dismissed.

While holding that Act 18 of 1937 was not within the legislative competence of the Central Legislature when it was enacted so far as agricultural land was concerned, the learned single judge was of the view that on the enactment of the Constitution, the shadow that had been cast on it was lifted, inasmuch as under List III of the Seventh Schedule, item 5, the subject-matter of “Wills, intestacy, and succession” came within the concurrent field without the qualification which was attached to that subject in the Government of India Act, in item 7 of List III. It relied on a decision of the Supreme Court in Bhikaji Narain v. State of Madhya Pradesh, AIR 1955 Supreme Court 781, and observed –

“The impugned Act had suffered only from a temporary eclipse and the shadow which had been cast on the impugned Act was the Constitution of India *****“

Thus, the question before the Division Bench was whether the Act of 1937 was applicable to agricultural land after the coming of the Constitution of India.

The Division Bench, relying upon the decision of the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25, and the Lahore High Court in Udham Kaur v. Parkash Kaur, AIR 1945 Lahore 282, held that:-

“In the present case Act 18 of 1937 as interpreted by the Federal Court and the Lahore High Court governed evolution and succession of property other than agricultural land. It was a valid piece of legislation qua that property. There was no question of any shadow being removed after the Constitution came into force and there had to be fresh legislation in order to make Act 18 of 1937, applicable to agricultural land also. In this view of the matter the decision of the learned Single Judge cannot be sustained on the main point.”

Thus, it was held that even after the coming of Constitution of India came into force, the cloud casted upon inclusion of agricultural land under the 1937, was not removed and the said Act shall not govern the succession in respect to thereof. It may be mentioned that the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25 (Supra) as relied upon by Division Bench had further relied upon the decision of Federal Court in 1941 AIR federal Court 72 to hold that agricultural land shall not be included under the 1937 Act.

In the meantime, with the passage of time and development, a codified law to deal with the succession and inheritance of Hindu’s was passed and Hindu Succession Act, 1956 came into force on 17th of June, 1956.

The said Act repealed all the previous Acts and, by virtue of section 4, unless expressly provided, had an overriding effect on all the Acts, usages, and customs with respect to any matter for which provision was made in the act.

Furthermore, by virtue of section 14 of the said Act, any limited right given to a woman in movable and immovable property, whether given before or after the commencement of the Act, shall be deemed to be her absolute property by virtue of section 14(1).

Section 14(2), on the other hand, carved out an exception to the said rule, stating that property acquired by a Hindu female by way of gift, will, or any other instrument, or a decree or an award, conferring restricted rights to her, shall not become her absolute property by virtue of section 14.

14. Property of a female Hindu to be her absolute property:-

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Thus, after the coming of the Hindu Succession Act, 1956, any property that was held by a Hindu female, whether before or after the commencement of the said act and which does not fall under the exception of 14(2), shall be held by her in an unrestricted and absolute manner. The word “possessed” as incorporated in section 14 was further held by various judgements of the Supreme Court to include any kind of remote possession, be it constructive, physical, or even a right to possess.

The result of the incorporation of this section led to a situation whereby all the limited rights given to a female Hindu under the 1937 Act became absolute by virtue of section 14(1) of the Hindu Succession Act. However, by virtue of judicial precedents as discussed above, the said section was unable to provide any benefit to the Hindu Female with respect to any agricultural lands, as the same was held to be not included in the ambit of 1937 Act, and no Hindu Widow was entitled to even a limited right in the agricultural land under the 1937 Act.

The ratio of exclusion of agricultural land under the 1937 Act, was again put to test by the Supreme Court in Vaijnath v. Guramma 1999 AIR (SC) 555 whereby, while examining the scope of 1937 Act viz a viz Hyderabad (application of Central Acts) 1952, held that there is nothing in the 1937 Act which would exclude the agricultural land. Thus, it was held that federal court judgement shall not apply and the said Act shall also be deemed to include agricultural land. It was held that :-

“…………The language of the Hindu Women’s Right to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words ‘property’ as well as ‘interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word ‘property’. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.

The appellants, however, rely upon a subsequent Act passed by the State of Hyderabad, namely, Hyderabad Hindu Women’s Rights to Property (Extension to Agricultural Land) Act, 1954. Section 2 of the said Act provides that “term ‘property’ in the Hindu Women’s Rights to Property Act as in force in the State of Hyderabad shall include agricultural land. This Act received the assent of the President on 15th October, 1954 and was published in the State Gazette dated 22nd of October, 1954. It was submitted that prior to the enactment of the Hyderabad Hindu Women’s Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu women’s Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women’s Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word ‘property’ is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to the original Hindu Women’s Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women’s Right to Property act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply……“

The ratio of the scope of the 1937 Act to include agricultural land was again tested by the Supreme Court in Babu Ram v. Santokh Singh (Deceased) through LR’s, 2019 AIR SC 1506, whereby the Supreme Court was dealing with a judgement of the Himachal High Court with respect to the inclusion of agricultural land with respect to the right of premption under section 22 of the Hindu Succession Act, 1956. While dealing with the aspect and scope of section 22 to include agricultural land, the Supreme Court discussed the comparison between the Government of India Act, 1935 and the Constitution of India. It also discussed various judgements under the 1937 Act, including the Federal Court judgement whereby agricultural land was excluded from the scope of the 1937 Act. While specifically holding that section 22 of the Hindu Succession Act 1956 should apply to agricultural land also, it was held that:-

“13. In the aforesaid background, we are called upon to decide the applicability of Section 22 of the Act in respect of agricultural lands. Before we consider the issues in question, we must refer to the decision of this Court in Vaijanath and ors. v. Guramma and anr., 1999(1) RCR (Civil) 210 : (1999) 1 SCC 292. In that case matters pertaining to intestacy and succession relating to joint family property including agricultural land, were dealt with by a state law which had received the assent of the President. Following observations of this Court, are relevant for the present purposes:-

“8. There is no exclusion of agricultural lands from Entry 5 which covers Wills, intestacy and succession as also joint family and partition. Although Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The language of the Hindu Women’s Rights to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words ‘property’ as well as ‘interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word ‘property’. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.“

14. When the Federal Court was called upon to consider the matter, Entry 21 of List II of 1935 Act had inter alia dealt with “transfer, alienation and devolution of agricultural land”. It was in the exclusive domain of the provincial legislatures. The idea that the provincial legislatures were alone entitled to deal with matters relating to “transfer, alienation and devolution of agricultural land” was again made clear in Entry 7 of List III by expression “…succession, save as regards agricultural land” which dealt with concurrent powers. The provincial legislature had thus exclusive competence with regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal Court had answered the first question that the provisions of Hindu Women’s Rights to Property Act, 1937 and Hindu Women’s Property (Amendment) Act, 1938 would not regulate succession to agricultural lands in the provinces.

15. But the situation underwent considerable change after the Constitution of India was adopted.

(i) The subjects “Transfer, alienation of agricultural land” are retained in the State List in the form of Entry 18 but the subject “devolution” was taken out.

(ii) As against earlier Entry 7 of List III where the subject, “succession” came with express qualification, “…save as regards agricultural land”, that qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is “…intestacy and succession”. The changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows “succession” in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to “transfer, alienation of agricultural land” which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to “intestacy and succession” which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with….“

The judgement in Babu Ram’s case laid down that after the coming into force of the constitution of India, any distinction that was there earlier with respect to the State list and Central list stands removed, and resultantly, no distinction can be made between agricultural and non-agricultural land. The Supreme Court clearly discussed the scope of the 1937 Act and the Federal Court judgement and many subsequent judgements which were passed on the basis of that judgement to hold that since the said distinction between state property list and Central list is no longer good, the word property, for all intents and purposes, shall be deemed to include agricultural land too.

Thus, with the said question having been decided in favour of the widow, holding that the provisions of the 1937 Act shall apply to agricultural land as well. The unrest that was caused by earlier decisions of the Federal Court and other judgements following that has been put to rest. As a result, it can safely be inferred that any restricted or limited right that the Hindu Widow derived in a property under the 1937 Act and which was acquired after the coming of Indian constitution, shall become her absolute property under section 14(1) of the 1956 Act.

(The author is a practicing advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

Post-independence, the laws relating to intestate succession amongst the Hindus are governed by the Hindu Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance in the matters of succession among the Hindus. However, the principles governing succession of the Coparcenary property were distinct and different under the Act.

The term ‘Coparcenary‘ is a much narrower body than a joint family, and consists of only those persons who have taken by birth, an interest in the property of the holder, for the time being, and who can enforce a partition whenever they like.The coparcener must be a member of the family, but a member of the family need not always be a coparcener. The eldest of the coparcener is called the Karta of the family.

Article 236 of the Mulla’s Hindu Law defines “Karta” as: “Manager – Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta.”

The basic concept of coparcenary prior to the amendment of 2005 in Hindu Succession Act was that only male members of a joint Hindu family could constitute a coparcenary, completely excluding the female members of the family. This concept has been substantially amended with the amendment of Section 6 of the Act. The said 2005 amendment also omitted Section 23 of Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.

The amended Section 6 of The Hindu Succession Act, 1956, which came in effect vide Act 39 of 2005 w.e.f. from 09-09-2005 reads as under: –

S.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 in, as property capable of being disposed of by 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 survivorship, 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, of 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 affect-

(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.

Thus, the amendment balanced the property rights of male and female siblings with regard to the rights in the coparcenary property. Though the amendment was clearly to be implemented from 09-09-2005 yet, soon after the amendment, the question regarding the prospective or retrospective operation of the amendment came up before few high courts.

One set of thought was that in the absence of any express provision or an implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. It was based on the legal principle that succession never remains in abeyance, and opens on the date of the death of the testator, and the rights of the heirs get crystallised on that day, even if partition by metes and bounds had not taken place. Thus, the subsequent amendment cannot undo, what has been done earlier, by re-opening the partition, even if notional.

The counter thought was that the amendment being a piece of social/welfare legislation, to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.

Whereas the Karnataka High Court in 2010 (57) RCR (Civil) 160 Pushpalatha N.V. v. V. Padma, interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, the Full Bench of the Bombay High Court in 2014(4) RCR (Civil) 620 Shri Badrinarayan Shankar Bhandari and others v. Ompraskash Shankar Bhandar, interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. Similarly, conflicting views were taken by different High Courts regarding the applicability of the said amendment.

The said question of law ultimately came to be decided by the Supreme Court in Prakash v. Phulavati, 2015 (4) RCR (Civil) 952, whereby it was held:

“22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.

23. Accordingly, 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.” (emphasis supplied by the writer).

The Crux of this judgement is that, if the coparcener (father) had passed away prior to 09.09.2005, i.e. prior to the date when the said amendment was enforced, the living daughter of the coparcener would have no right to coparcenary property. Thus, for a daughter to claim any right in the property or exercise any right of partition for the same, she must prove that her father was alive on 09-09-2005 else she would lose her claim in the same. Phulvati’s case, supra, is based upon the cardinal principle of law that succession does not remain in abeyance, and the rights of the heirs qua succession are settled immediately at the time of the death. Thus, the court clearly held that the amendment in the Act can only be effective if the death of the father occurs after the date of enactment i.e. is after 09-09-2005. In the absence of any express provisions, it was held that the Act cannot be applied retrospectively, even if it is a social legislation. Thus, accordingly, the amended provision shall only apply to the “living daughters of living coparceners” at the time of enactment and the transactions prior shall remain unaffected.

Although the said decision of the supreme court had put this controversy at rest, but once again the said position was reanalysed by the supreme court in Danamma @ Suman Surpur & Anr. v. Amar & Ors. 2018 (1) RCR (Civil) 863.

As per the facts of that case, the appellants were the daughters of a coparcener who had died in 2001. 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. Relying upon Pushpalatha case (Supra) the appeals to High Court were also dismissed. However, the Supreme Court, while replying upon Phulavati’s case and discussing the ratio laid down in Bombay Full Bench Judgement Supra 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”. The Supreme Court considered Phulavati’s case (supra) and agreed with the findings, yet applied a different principle while granting relief to the daughters. It was held that partition is not complete with passing of a preliminary decree alone and attains finality only with the passing of the final decree. The Supreme Court further held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.

It was laid down that

“24. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).”

Since the principle laid down in Phulavati case supra, was agreed upon, and still continues to be good law, a daughter whose father had died before the amendment came into force, cannot claim the benefit of the amending Act. However, going strictly by the ratio and facts in Danamma’s case, supra, a daughter will be entitled to the benefits of the amendment Act in a pending suit filed after 2005, regardless of when her father died.

The said conflict in the reasoning of both these judgements further created a confusion with regard to the correct position of law with regard to the applicability of the amendment, and ultimately again in Vineeeta Sharma v. Rakesh Sharma, Civil Appeal No. 32601 of 2018, vide order dated 05-12-2018, the Supreme Court while hearing a similar question of law ordered that :

“There is a conflict of opinion in two Division Bench Judgments of this Court i.e. Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343 with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005.

In view thereof, this matter has to be heard by a Bench of three Judge. Though we are sitting in combination of three Judge Bench, learned counsel for the respondent has drawn our attention to Order VI Rule 2 of the Supreme Court Rules, 2013 as per which the matter is to be referred to Hon’ble the Chief Justice and it is for the Hon’ble Chief Justice to constitute a Bench for hearing the matter.

We accordingly direct the Registry to place the matter before Hon’ble the Chief Justice for constitution of the Bench.”

The said civil appeal was decided by the Supreme Court on 11th August 2020 whereby a detailed reasoning has been given by the Supreme Court holding that :-

“Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women’s rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time. The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara coparcenary and has been given the rights equal to that of a son……”

“……As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great-grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded…….”

“…………In Mitakshara coparcenary, there is unobstructed heritage, i.e.,apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birth right is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner’s existence. It is only on his death that obstructed heritage takes place……”

“…….It is apparent that unobstructed heritage takes place by birth,and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6…”

“……. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati…..”

“……the intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may beset up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5)……”

“…..coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the brothers may continue to be joint.The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved….”

Thus, discussing and elaborating the entire law on the issue the court answered the reference holding that: –

i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

“……. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision……”

Thus, in the above noted reference the Supreme Court has not only explained the concept and scope of the 2005 amendment by discussing the entire case law on the subject but has also put to rest the anomaly created by different interpretation of the law by Phulvati and Danamma’s judgements.

The ratio of law as laid down by Vineeta Sharma’s Judgement is that :-

• A coparcenary property that comes to the hands of a ‘single person’ temporarily, would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law.

• The word daughter as inserted by way of 2005 amendment shall have the same effect as that of a son.

• It is only on actual partition a coparcener becomes entitled to a definite share. The interest of a coparcener is called “undivided coparcenary interest,” which remains undivided.

• The statutory fiction of partition that was created in the proviso to Section 6 of the pre-amendment Act was only for the purpose ascertaining the share of the deceased coparcener. Thus, regardless of the preliminary decree passed, the decree passed in appeals or for final decree ought to give equal coparcenary share to daughters as sons are given.

• The court also held that “…in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

• The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

• The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

• The right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

• Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener.

• The statute with prospective effect operates from the date of its enactment, and a legislation with the retroactive effect would work backwards and also undo the impairment caused prior to its coming into force. Thus, the amendment of 2005 too operates in futuro but by virtue of its retroactive operation, it confers rights on daughters from the time of their birth even if the birth took place prior to the amendment.

Thus, the effect of this judgment is that in the matters of inheritance under section 6 of the Hindu Succession Act 1956, the daughters as well as the sons get the equal right in the property left by their father. It is immaterial whether the father died prior to the amendment or after the same and any partition or family arrangement so pleaded by the other coparceners excluding the daughters shall have to be ignored outrightly unless the same is proved beyond doubt. The Supreme Court while removing the discrimination between a son and a daughter observed that “A common saying is worth pressing into service…A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

Though the said judgement has put all the speculation at rest by removing the gender bias between a son and daughter but still there are many such grey avenues which are yet to be evolve and adjudicated upon, making the law well settled on the point.

As already discussed, inheritance law knows no gender and the same is equal for a son and a daughter but the law has also another recognises transgenders as the third gender and interestingly the statute and all the judgements so far on the subject are silent about it. Thus, the same also needs to be addressed sometime by judicial precedents.

It may also be pertinent to mention here that the said amendment in section 6 has also proceeded to remove the distinction between a married and an unmarried daughter, and the 2005 amendment gives equal rights to daughters in the coparcenary, as much as it gives to the sons.

As discussed above in the preceding paragraphs, that it has always been the position that the eldest of the coparceners is called the Karta of the Coparcenary, and has all the rights for the control and management of the coparcenary property.

Another important question that still remains unsettled and unanswered is as to whether women or daughters (married and unmarried both) can be allowed to become managers or Karta of the joint hindu family, and manage the properties of the family, as such.

The question so involved may be of crucial importance, and is anticipated for the reason that daughters after marriage are usually uprooted from their father’s home and are rooted to their matrimonial home i.e. husband’s family, and thus may live far away from the joint family of their father/brothers, and staying in their husband’s family, after their marriage, could be venerable to the influence of their husbands or husbands’ families. However, not only these, but many other complex questions would arise regarding the inheritance and succession, in case of a married daughter residing elsewhere, acting as a female Karta. Thus, the said amendment of 2005 removing the distinction between the role of Karta, being a son or a daughter, and with no further distinction between a married and an unmarried daughter, or a daughter who is subsequently married, has wakened up a multiple range of complexities, which are though somewhat settled but not fully solved by judicial precedents.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

“What you have taken, Has been from here, What you gave has been given here

What belongs to you today belonged to someone yesterday, and will be someone else’s tomorrow

Change is the Law of The Universe“

Bhagwat Gita

It is a lesser known fact that the provisions regarding succession in the Hindu Code Bill, as originally framed by the B.N. Rau Committee and piloted by Dr. Ambedkar, was for abolishing the Mitakshara coparcenary with its concept of survivorship and the son’s right by birth in a joint family property and substituting it with the principle of inheritance by succession but the final bill was passed with major changes due to the opposition of the elected representatives. To this a disappointed Dr. Ambedkar reportedly said:

“It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might dam the Bill by making it appear worse than it was”

Subsequently in 2005 the Legislature through a progressive amendment to the Hindu Succession Act 1956, brought in the much awaited change envisioned by him by granting coparcenary rights to daughters. Statement of Object and Reasons of the Hindu Succession (Amendment) Act, 2005 provide clarity on the 2005 Amendment Act:

“STATEMENT OF OBJECTS AND REASONS

1. The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. However, it does not interfere with the special rights ofthose who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on”Property Rights of Women: Proposed Reform under the Hindu Law”.

5. The Bill seeks to achieve the above objects.

NEW DELHI;

The 16th December, 2004.”

In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth. Therefore in Mitakshara School, sons had an exclusive right by birth in the joint family property. Ancestral property was traditionally governed by the Mitakshara school, wherein property descends only through the male line as only the male members of a joint Hindu family have an interest by birth in the joint or coparcenary property. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender and negated the fundamental right of equality guaranteed by the Constitution of India.

Although the legislative intent of the Amending Act was clear however as is the case with any other amendment in a Statute, this instant amendment was also a subject matter of intense legal debate and resulted in various High Courts interpreting the same in divergence.

The Hon’ble Apex Court in the case of Parkash & others v. Phulavati others 2016(2) SCC 36 laid down that the provisions of the amendment are applicable prospectively to living daughters of living coparceners as on 9.9.2005, irrespective of when such daughters are born. However, in Danamma @ Suman Surpur v. Amar 2018(3) SCC 343 the Court granted the rights in a coparcenary to a daughter of a coparcener who had died much before 9.9.2005. This created a divergence of legal -opinion and the matter came to be referred to a larger bench for resolution in the case titled Civil Appeal No. 32601/2018 Vineeta Sharma v. Rakesh Sharma. The Hon’ble Supreme decided the reference in a landmark judgment pronounced on 11.8.2020. The bench after discussing the law of creation of Mitakshara coparcenary and the nature of the rights of the members of a coparcenary under the Hindu law proceeded to hold the right of the daughters under the Amending Act of 2005 to be retroactive rather prospective and distinct to retrospective.

The court in the lengthy and effortful judgment noticed detailed arguments raised against such an interpretation. It was unsuccessfully contended that a legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created. It was argued that the declaration by the law that the daughter of a coparcener has certain entitlements and be subject to certain liabilities is prospective. The daughter is treated as a coparcener under the Amendment Act and not because of the daughter’s birth prior to the amendment. If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past. Having regard to the plain language and future perfect tense “shall have the same rights,” the only conclusion is that the daughters who are included in the coparcenary will have the same rights after coming into force of the Amendment Act. It was contended that “Daughter of a coparcener” means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. The Central Amendment has not made a distinction based on the daughter’s marital status expressly but has made it evident by the use of the expression ‘joint Hindu family’ and ‘daughter of a coparcener.’ The provisions should be read to exclude married daughters. The provisions of section 6, as amended, are prospective. It was not intended to unsettle the settled affairs.

However, the court repelling the above contentions decisively held that what was significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6.

It was observed that the legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property under the unamended provision. The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition – oral or written. Section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal.

The court further observed that uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively.

While carving out the above distinction the court held that the prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. It is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

While distinguishing Parkash & others v. Phulavati others 2016(2) SCC 36, the court observed as under:

“75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.”

On Danamma @ Suman Surpur v. Amar 2018(3) SCC 343 which was partly overruled, it was noticed as follows:

“78. In Danamma, it is pertinent to mention that Gurulingappa, propositus of a Hindu joint family and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.”

The court finally concluded as under:

“129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

After the reformative Amending Act of 2005 and the interpretation of the same in the instant judgment, the Mitakshara coparcenary has been diluted to a greater degree and will be more or less, nothing but a relic of the past . Now with the discernment of the legal position, it is expected that the amendment will bring the much need change in the social status of the daughters. It has already taken 15 years since the amendment was incorporated but now the Hon’ble Supreme court has paved the way by clearing the last hurdle and the onus is on the subordinate courts to be the flag bearers of change.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)