The effect of Hindu Succession Act, 1956 on partition of HUF property is a debatable issue between the legal experts of Hindu Law. In my opinion, this legal position has been settled by the following judgments of the Apex Court that on partition of HUF the coparcener who receives the property will be his individual property under section – 8 of Hindu Succession Act, 1956 :

1. In the Landmark Judgments, Commissioner of Wealth Tax v. Chandra Sen, 1986 (3) SCC 567 : AIR 1986 (SC) 1753, The Supreme Court held that on partition son inherit the property as an individual and not as Karta of his own family.

Under Hindu Law, the son inherit the property of his father as Karta of his own family. But The Hindu Succession Act has modify the rule of succession. In interpreting the provisions of the act it is necessary to bear in mind the Preamble of the Hindu Succession Act. The preamble states that it was an act to amend and codify the law relating to intestate succession among Hindus.

Furthermore, Section – 4 of Act makes it clear that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. It would be difficult to hold today that the property which devolved on a Hindu under Section – 8 of Hindu Succession Act would be HUF in his hands vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class – I.

The express words of Section – 8 of Hindu Succession Act cannot be ignored and must prevail. The preamble of the Act reiterates that act is inter alia to amend the law, with that background the express language which excludes son’s son but included son of predeceased son cannot be ignored.

2. In Judgment of Yudhishthir v. Ashok Kumar, 1987 (1) SCC 204 : AIR 1987 (SC) 558, it is held that property devolved on Hindu under Section – 8 would not be HUF in his hands vis-a-vis his own sons.

3. In Judgment Bhanwar Singh v. Puran & Ors, 2008 (3) SCC 87 : AIR 2008 (SC) 1490, it is held Ancestral property – Death of Hindu male in the year 1972, property inherited by the son “A” and his three daughters – Property was partitioned by all the four in equal shares – The property thus lost the character of Ancestral property in terms od Section – 8 of Hindu Succession Act – Son of “A” born in the year 1997 acquired no interest in property by birth.

4. In a Important Judgment – Uttam v. Saubhag Singh & Ors. 2016 (4) SCC 68 : 2016 AIR (SC) 1169, it is held that an Ancestral property ceases to be joint family property from the date of death of grandfather – and devolved by succession under section – 8 of Hindu Succession Act.

On a conjoint reading of Section 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

Applying the law to the facts of the case it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and other coparceners devolved by succession under Section – 8 of Hindu Succession Act. This being the case of on the date of birth of the Appellant in 1977, the said Ancestral property not being the joint family property the suit for partition of such property would not be maintainable.

{According to my opinion, In this case legal position has been made clear that after partition of the joint family property the plaintiff/grandson has no right in such property because the joint family does not continue and the property in the hands of father being his individual property under Section – 8 of Hindu Succession Act.}

5. In a recent Judgment of Apex Court Radha Bai v. Ram Narayan & Ors. 2020 (1) RCR (Civil) 326, decided on 22.11.2019, it is held that after the death of the great grandfather, ancestral property partitioned between grandsons which came in exclusive share in individual capacity – The Grandfather legitimately dispose of the same vide registered sale deed in favour of defendant – Transfer of the property upheld.

6. In an another recent Judgment of Apex court – M. Arumugam v. Ammaniammal & Ors. 2020 DNJ 80, decided on 8.01.2020, it is held that that on the death of the coparcener notional partition is deemed to have taken place immediately before his death – Property no longer can be treated as joint property – Surviving members of the coparcenary get their share each in property – Share of deceased coparcener to be inherited in terms of Section – 8 of Hindu Succession Act.

There is another reason to take this view, section – 30 of the Succession Act clearly lays down that any Hindu can dispose of his share of the property by will or by any other testamentary disposition which is capable of being so disposed of by him. The explanation to Section – 30 clearly provides that the interest of a male Hindu in Mitakshara coparcenery shall be deemed to be property capable of being disposed by him within the meaning of Section – 30. This means that the law markers intended that all intents and purpose the interest of a male Hindu in Mitakshara coparcenery was to be virtually like his self acquired property. Furthermore, when we conjointly read Section – 30 with Section – 19, which provides that when two or more heirs success together to the property of an interstate, they shall take the property per capita and as tenants in common and not as joint tenants. This also clearly indicates that the property was not to be treated as a joint family property though it may be held jointly by the legal heirs as tenants in common till the property is divided, apportioned or dealt with in a family settlement.

7. In the latest Judgment Vineeta Sharma v. Rakesh Sharma dated 11-08-2020 of Larger Bench of Apex Court, discussed the amended provisions about partition of HUF and clarified that if partition of HUF has taken place as per law before 20th Day of December 2004, the daughter/coparcener will not get any share in HUF property because of partition.

Thus, If we go through the above judgments it becomes clear that if there is a partition of HUF after the commencement of Hindu Succession Act 1956 then the property in the hands of coparcener will becomes his individual property as per the section-8 of Hindu Succession Act 1956 and In such case there cannot be revival of HUF again even on the birth of son/daughter as coparcenary ceases on partition.

There was long agitation that the daughters born in a Hindu Joint Family, were treated separately, in the matter of family heritage – ancestral property – merely on the ground of their sex, though in all other respect they possessed identical attributes of their male siblings. After the Constitution of India came into force in 1950, this discrimination was violative of their fundamental right for equal treatment and the discrimination on the basis of sex or gender merely, was void whatever may be the social circumstances when the Rules were framed by Shastric Laws. With the spread of education, health, changing social atmosphere etc., it began to appear unjust and unreasonable to deprive a daughter of equal right with her male sibling, in sharing the ancestral heritage. As per Mitakshara Law (hereafter “Shastric Law”);

“A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter on her marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The Joint Hindu family is therefore a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption

The fundamental principle of the Hindu Joint family is the sapindaship without that it is impossible to form a Joint Hindu Family. With it as long as a family is living together, it is almost impossible not to form a Joint Hindu Family”

“The Joint Hindu Family with all its incidents, is thus a creature of law and cannot be created by an act of parties, except to the extent in which a stranger maybe affiliated to the family adoption…….

………the appellant’s wife become his Sapinda on her marriage with him. The daughter too, on her birth became a Sapinda and until she leaves the family by marriage, the sapindaship will bind her to the family of her birth” ……. The wife and unmarried daughters are members of his family. He is not by agreement making them so.”

See [AIR 1976 Supreme Court – 109 Para 13 and 14 Surjitlal v. CIT]

“A Hindu coparcenary is a much narrower body than the Joint Family. It includes only those persons who acquired by birth an interest in the Joint or coparcenary property. These are the sons, grandsons, great grandsons of the holder of the joint property for the time being” [Mulla Hindu Law Para 213] In Para 214 (2) it is stated

“A coparcenary is purely a creature of law, it cannot be created by an act of parties save,in far that by adoption a stranger may be introduced as a member thereof”

See also 9 Moors Indian Appeals 195 Abraham v. Abraham. See also Paras 233 and 237 Ragahvacharian’s Hindu Law.

See Also AIR 1970 Supreme Court 14, Para 4. In ILR 33 Bombay 669 at 685 and 686 (Kalagavada v. Somappa) The court was discussing the opinion expressed by different Shastric scholars about the ancestral property and its acquisition by a grandson (See Pages 685 and 686). Their Lordships observe:

According to Virmitrodaya (Sarkar’s Translation)

“in the grandfather’s property the grandson also acquires ownership by birth. The father is a link so far that through him Sapinda relationship between the grandfather and grandson is brought about. But when the relation has once been brought about by birth, the grandson become an entity by himself, and continuity of the relationship does not depend on the continuance of the father’s relationship to the grandfather. Even if the father dies or become an ascetic or outcast and thereby ceases to have any right to the grandfather’s property, the right of the grandson, born before any of those events, do not cease, but continue.

I have quoted above the fundamental concepts, which are classed a status. Hindu Joint Family has status, so each member of it has status, a coparcener has also status, so too the manager of the joint family. Status is a legal character, which is conferred by Law [AIR 1974 SC 199: AIR 1989 SC 1834]

The Shastric law conferred that status on male members only. Now the State Legislatures or Parliament are empowered to confer that status on female member and make her eligible to enjoy all the rights which were given to a male member of the joint family.

The first step was taken by the five States i.e., Kerala, Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. The Kerala model is different, because of a number of different personal laws in that State. The other State laws are substantially, identically worded in defining the attribute of the female coparcener.

As noted earlier the definition clause defining the status of the unmarried daughter, who was to be a coparcener is substantially same under the State Acts and the Central Act (39/2005)Interpretation of these sections had come up for consideration before the High Courts and the Supreme Court. There is no unanimity amongst these decisions. The provision is interpreted by the Benches of the Supreme Court in a different manner. In Andhra Pradesh and before the Supreme Court,the interpretations of this provision arose (during the pendency of the proceedings), as the new Hindu Succession (Amendment) Act came to be invoked by the daughters – during the pendency of the suit, appeals or during the final decree proceedings. In Andhra Pradesh, the question arose during pendency of the Final Decree Proceedings (FDP) in a suit for partition. The shares were given only to the sons and there was direction that the sharer brothers should make provisions for the maintenance and provision for marriage expenses of (Defendants 5 to 9 who were) daughters and maintenance of Defendant 3 out of the joint family properties by each of the Plaintiffs, defendants 1 and 4. During the pendency – the Andhra Pradesh passed the Hindu Succession (Andhra Pradesh Amendment) Act, 1986. It came into force on 05th September 1985. The daughters applied for their share in the course of the FDP as per the new Act. The Trial Court rejected their claim. So, the daughters filed Revision Petition before the High Court. The High Court set aside the Trial Court’s order and granted the claim of the daughters. This decision is reported in AIR 1990 Andhra Pradesh 263. Against this order there was an Appeal to the Supreme Court. The Apex Court (K.N. Singh and P.B. Sawant, JJ) dismissed the SLP (1991)3 SCC 647, observing;

“Hence, in our opinion the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29A was not attracted in the present case and the respondent daughters were entitled to their share in the family properties.”

AIR 2000 Supreme Court 3191 – Makineni Venkata Sujatha v. Land Reforms Tribunal -(M. Jagannadha Rao and K.G. Balakrishnan, JJ). The proceedings had commenced under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973. The parties were required to file the declarations about excess land as on 1-1-1975. The “Family Unit” to be lawfully held was defined under Section 2(f) of the Act. The Appellant – Makineni Venkata Sujatha was a minor’s on 1-1-1975. So, she had no right to file any declaration separately, as she was part of her father’s family.

The Andhra Pradesh Hindu Succession (Amendment) Act 1986, came into force with effect from 05/09/1985. It was contended for her (See Para 8) that the new right as a coparcener was as “the Section specifically stated that it was a right by birth”. So, her share which was included in her father’s holding had to be deducted for calculation of excess land Rejecting this argument in para 09 of the Judgement, their lordships observed

“The High Court held that the incidence of coparcenary began from 5/9/1985. It also held that Section 29 A could only override the provisions of Section 6 of the Hindu Succession Act, 1956 and would not override the provisions of the Andhra Pradesh Land Reforms Act 1973. We are in entire agreement with the said judgement.”

In Para 10 their Lordships state; “Section 29A of the Hindu Succession Act 1956 (as amended) conferred a right, on the unmarried daughter as on 05/09/1985 in the Hindu Joint Family property with the incidence of right by birth”

The High Court judgment referred to is reported in (1998) 1 Andhra Law times 496 Utkur Sarat Kumar v. Authorized officer (Lingaraj Rath and Chalameswar JJ. In Para 10 their Lordships had observed;”A major daughter was not a coparcener in a Hindu Joint Family. She was made so only by virtue of the 1956 amendment with effect from 05/09/1985. But though she become a coparcener by her birth, yet the incidence of the coparcenary begins from 5/9/1985 only”

AIR 2003 Supreme Court 2322 – B. Chandrashekar Reddy v. State of Andhra Pradesh (K.G. Balakrishnan and P. Venkatrama Reddi, JJ.)

This was also a case under the Andhra Pradesh Land Reforms Act, concerning ceiling area and the impact of the Hindu Succession (Amendment) Act 1986 (AP amendment). As per Section 4 (f) the “Family Unit” was defined, which included the individuals, his spouse, minor sons and unmarried daughters only and not married major daughters. Later, Section 4 of the Act was amended by enacting Section 4A, by which major sons, were entitled to additional area for their ceiling limit. In 1986, the Andhra Pradesh Hindu Succession(Amendment) Act, came into force. So,Appellants wanted to rely on this new provision, Their Lordships reiterated their opinion that “the daughters acquired a right by birth as they were deemed to be treated as coparceners of the Joint Family and they have a right to seek partition ….” However, their claim was rejected as they could not avail of that provision for ceiling limit, which was fixed by law earlier.

2006(8) SCC 581 – Sheela Devi and others v. Lal Chand another (S.B. Sinha and Dalveer Bhandari, JJ.)

In this case the person in respect of whose property the controversy had started had died in 1989. So, the Court held “The succession having opened in 1989, evidently, the provisions of the Amendment Act 2005, will not apply”

2006(6) SCC 800 – Lehja Bai v. Sewanti Bai (R.V. Raveendran and J.M. Panchal, JJ)

In this case the succession had opened before 2005 Act/ The Court has considered how the shares have to be worked out as per the old Section 6 of the Hindu Succession Act, 1950.

2006(8) SCC 656 – Anar Devi v. Parameshwari Devi – (B.N. Agarwal and P.P. Naolekar, JJ)

This case was also about succession that had opened before 2005 Act. It states how the shares are to be fixed as per the law then in force.

AIR 2012 SC 169 Ganduri Koteshwaramma v. Chakiri Yanadi – (R.M. Lodha and Jagdish Singh Khehar, JJ)

In this case the Appellants who were sisters of Respondent No. 1, whose father was Chakiri Venkataswamy filed suit for partition of Schedule A, B, C properties claiming 1/3rd share. Defendant No. 1 was the father. The Defendant No. 1 died in 1993 during the pendency of the suit. So, the Plaintiffs claimed 1/3 share plus 1/4 share in the 1/3 share of Late Father. The suit was decreed in favour of the Plaintiffs, on March 19, 1999 and a preliminary decree was passed. On 27th September 2003, this decree was amended declaring that Plaintiff was entitled to equal share along with defendants 2 to 4. The preliminary decree was accordingly amended. A commissioner was appointed by the Trial Court for division of the suit properties. He submitted his report. Before passing of final decree, the Central Act of 2005 (Hindu Succession Amendment Act) came into force. So, Appellants (Defendants 3 and 4 in the suit) applied for grant of 1/4th share each in the suit properties. The Trial Court granted the prayer. There was an appeal to the High Court (A. P). A single Judge allowed the Appeal and set aside the trial court’s order. Hence, the appeal to the Apex Court. The Apex Court held that on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The court held that mere passing of the preliminary decree would not debar the daughters from claiming their new right in the FDP. Relying on the decision in Sai Reddy’s Case and Phoochand’s Case in AIR 1967 SC 1470, they allowed the appeal and restored the Trial Court’s order dated 15 June 2009.

(2013) 9 SCC 419 – Rohit Chavan v. Surinder Singh (Chandramauli Prasad and V. Gopal Gowda JJ.)

In this case the subject land had been allotted to Gulab Singh in a family partition. Rohit was his son, who was born on 25/03/1987. Gulab Singh released his rights in the suit land at 6 Kanals in favour of his brother’s son Surinder Singh on 19/05/2004. Earlier he had sold 8 Kanals of land to Defendant No. 3 to 5 on 19/05/2000. So, Plaintiff Rohit filed the suit to set aside the release transaction as also the sale to Defendant Nos. 3 to 5 as being null and void. Defendant Surinder Sing’s contention was that the subject land became the separate property of Gulab Singh, by being allotted to his share. So, he had full right to release-gift- it to the Defendant No. 1 and also to sell the portions to the other defendants. The Apex Court held that the property did not lose its character as joint family property; as the release deed was without consideration, it was void. The sales to Defendants 3 to 5 were also held not binding.

AIR 2009 Supreme Court 2849 Sekar v. Geeta (S.B. Sinha and Dr. M. Sharma JJ).

In this case the question related to Section 23 of the Hindu Succession Act 1956, where the female member had no right to ask for partition of dwelling house which was wholly occupied by male members as dwelling house. This section is now deleted under 2005 Act. While dealing with the matter the court has stated that 2005 Act is prospective in operation.

AIR 2016 Supreme Court 769 Prakash v. Phulavati (Anil R. Dave and Adarsh Kumar Goel, JJ.)

One Yeshwanth Chandrakanth Upadhye died on February 18th, 1988. His wife was Sunanda Bai. They had no male issues, but only daughters of whom Phulavati was one. Sunanda Bai, took Prakash in adoption. The Subject property was ancestral.

In 1992 Phulavati filed a suit for partition against Prakash and impleaded his brother and sisters as Defendants. During the pendency of the suit the Hindu Succession (Amendment) Act 2005 came into force. So, Plaintiff got the plaint amended. The trial court partly decreed the Plaintiff’s claim. The Defendant appealed to the High Court, claiming that as per 2005 Act, she was entitled to inherit the property as a coparcener. The Defendant/Appellant contented that the Plaintiff could not claim share in the self-acquired property of the member of the joint family property, that her claim could be considered only under Section 6 of 1956 Act, as it stood before 2005. The High Court set for consideration the issue, whether the Plaintiff is entitled to the share under Section 6 of the Act 39/2005. After elaborate consideration of legal position the High Court held that Phulavati is entitled to 1/7th share as per the new 2005 Act. Hence the appeal to the Supreme Court, by the Defendant No. 1. In Para 17 of the Judgment the Apex Court observes:

“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”

The Court further heled that the Act was prospective in operation. So, their Lordship summarised their conclusion in Para 23 of the judgement in these words.

“23. Accordingly, we hold that the rights under the amendment are applicable to living daughter of living coparcener as on 9thSeptember 2005, irrespective of when such daughters are born.“

Section 6 (3) was a provision which regulated the succession to the property held by a deceased coparcener. This Section was part replacement of former Section 6 of the 1956 Act. The Section made it clear that this Section would apply to a case where the coparcener dies after the new Act commenced. In that context the Court observed that the dying coparcener should have been alive on the date of commencement of the 2005 Act. The next two judgements under consideration would show that this judgement (Phulavati Case) had not at all been carefully read and understood. The confusion has arisen due to the language used in Para 18, 23 and 26(2) of the Judgment.

In conclusion the order of the High Court was set aside, and the case was remanded to consider the matter afresh. The result was that the matter had to be decided s per law before 2005; that the daughters could not claim to be coparceners.

2018(1) Kar. L.R. 161 (SC) Danamma @ Suman Surpur v. Amar (A.K. Sikri and Ashok Bhushan, JJ.)

This was a suit filed by the grandson of the propositus Gurulingappa Savadi for partition and separate possession of three items of ancestral properties. Gurulingappa had 2 sons Arun @ Arunkumar and Vijay. He had 2 daughters: Mahananda and Danamma. Amarwas the son of Arun. Sumitra was Gurulingappa’s wife. Amar filed the suit for partition on July 1, 2002, claiming 1/5th share. Gurulingappa had died in 2001. His widow was Defendant No. 8. He contended that the daughters had no right to claim any share. In the suitAmar’s father was Defendant No. 1, his uncle Vijay was Defendant No. 5; his own sisters were Defendant Nos. 3 and 4 i.e., daughters of Arun. Danamma was Defendant No. 6, and Mahananda was Defendant No. 7. The Defendant No. 1 did not file any Written Statement. The Defendant Nos. 2, 3 and 4 filed Written Statement supporting the Plaintiff. Defendant No. 5 contested the suit setting up an oral partition. The Trial court decreed the suit in the Plaintiff’s favour. As Defendant 8 (mother) had died during the pendency, her share was to devolve only on the Defendant Nos. 1 and 5 (i.e., sons) A preliminary decree was passed on 09th August 2007. Defendant Nos. 5, 6 and 7 (daughters) filed RFA No. 32/2008 to the High Court. It was dismissed on March 4th, 2012. So too the review application. Hence the appeal before the Supreme Court.

As per the discussions made earlier, in para 18, their Lordship set aside the Judgement of the High Court and upheld the claim of the daughters as per the Act of 1956, before 2005 amendment.

From Para 20 onwards they deal with the Amendment of 2005, and the judgement in Phulvati’s case to hold that the new Act of 2005, applied to the claim made by Danamma and her sister. The court held that the daughter gets right under the new Act by birth. I will reproduce the entire para 24 to understand the reasoning.

“24. Section, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth became 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 recognizes 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 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 by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first state of a coparcenary is obviously its creation as explained above, and as is well recognized. 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).“

Further, in Para 28 the conclusion is stated, which means that, though the daughters were married they were given benefit of 2005 Act, contrary to Section 6(1) of the Act. The definition of coparcener preserved the sanctity of Sapinda relationship by enacting that the daughters must be unmarried, and the Law Commission also had recommended similarly. This decision allows a non Sapinda to be given the status of a coparcener. Obliviously, this decision is opposed to the provisions of 2005 Act.

C.A. No. 1933 of 2009 – Mangammal @ Thulasi v. T.B. Raju – order dated 19/04/2018 (R.K. Agrawal and A.M. Sapre. JJ) (2018) 15 S.C.C. 662

In this case T.G. Basuvan was the prepositus. He had expired before the suit was filed. (O. S. No. 202/2003). He was survived by his widow, one son (Defendant No. 1) and two daughters(i.e., Appellants 1 and 2). The suit was filed by the daughters for partition. The trial court dismissed the suit on 25/02/2004. The Appeal to the District Court met with the same fate on 14/12/2005. The Appeal to the High Court was dismissed on 18/09/2006. Hence the Appeal to the Supreme Court by Special Leave. The Court held that the High Court Judgement holding that the claim of the appellants was barred by limitation and adverse possession was not sustainable when there was no proof of dispossession and no pleading by defendant about ouster. Then their Lordship considered the provisions of Tamil Nadu Hindu Succession (Amendment) Act 1989 which was relied on by the Plaintiff’s daughters – i.e., Section 29A. In paragraph 10 of the judgement the Court says:

“(10) Moreover, under Section 29-A of the Act, legislature has used the word the daughter of a coparcener. Here, the implication of such wording means both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989. The similar issue came up for the consideration before this Court in Prakash and Ors. v. Phulavati and others., (2016) 2 SCC 36, this Court while dealing with the identical matter held at Para 23 as under: –

“23. Accordingly, we hold that the rights under the amendment are applicable to living daughter of living coparcener as on 9th September 2005, irrespective of when such daughters are born.””

Then the court considered Danamma’s case 2018(1) Scale 637; They observe that though in that case the father of the daughter had died in 2001, yet the court permitted the daughter’s claim to the right in ancestral property in view of the amendment in 2005. The court tried to distinguish that case on the ground that it was based on the peculiar facts of the Danamma and that the court did not primarily deal with the issue of death of the father.

So, their lordship concluded:

“Shortly put, only living daughters of living coparceners will be entitled to claim a share in the ancestral property”

Simple and careful reading of the judgement in Phulvati’s case would show that the same is misread and misapplied. In Phulvati’s case the father had died many years before the suit. The benefit of Section 6(1) (2005) is given to unmarried daughter only because she has carried the pinda of the grandfather through the father. The name of the father is to show the genetic history. What benefit under the 2005 Act he is to get under Section 6(1)? In that case (i.e., Mangammal’s) the ultimate decision was that the rights of the parties would be governed by 1956 Hindu Succession Act and not the Tamil Nadu Hindu Succession Act, 1989.

From the above discussions it will be see that in some decision about A. P Amendment Act, similar to 2005 Act, the Supreme Court judgements say that the incidence of coparcenary starts from the birth of the daughter, but it commences, as per the law on the date on which the Act came into force. Most Judgements hold that the new provisions would apply even if the daughter was born before the new Act of 2005 came into force. Some judgements hold that even a married daughter is entitled to get the benefits, some judgments misreading the earlier judgements conclude that even if succession has opened before 2005 Act, they have extended the benefit of the Act of 2005. Most judgement read the phrase “by birth” in the definitions of coparceners as `from birth’ and thus the coparcenary right starts from the date of birth of the daughters. The last case shows that both i.e., the daughters and coparceners must be alive to enjoy the benefit of the Amendment. Therefore, if one is dead, the law will be dead for the survivor. All there are Apex Court Judgements.

At the beginning only I have stated the basic principles applicable to the Hindu joint family, members and the coparcenary, Section 6(1) of Hindu Succession Act 2005 opens with words `in a joint Hindu Family governed by the Mitakshara Law’. The Joint Hindu family is creature of law and has legal status.

So, all the attributes involved in that concept are imported here’ Coparcenary ship’ is also a status, which implies that he is a male member of the joint Hindu family and he is one amongst three generations next to the owner in unbroken line of male descent. He gets this status by virtue of his entrance into the family as laid down by Shastric Law. He is invested with right to have interest in the family property the moment he is born. Only male members would be coparceners. Now the new Act of 2005 amends the Shastric Law and enables the daughter of the coparcener to be a coparcener. This is a new concept opposed to Shastric law. Hence a special legislative enactment was required for that purpose and this was done by the Act of 2005.

The Hindu Succession (Amendment) Act 2005 amends Section 6 of the Hindu Succession Act 1956 by deleting the old Section 6 and enacting the new Section 6(hereinafter the Amendment Act will be referred to as 2005 Act and the Principal Act of 1956 as 1956 Act). The heading of the old and the new sections are similar. Section 6 of 1956 Act related only to a male coparcener. The new Section of 2005 Act applies to the male and female coparceners as under the new 2005 Act the daughter in a Hindu Joint Family is made a coparcener with effect from 05/09/2005. Section 6(1) and (2) of the new 2005 Act defines the status of the new daughter -coparcener and her rights in the joint family property. It is made clear that her new status is on par with her male siblings in the joint family. Section 6(3) contains provisions about succession to the joint family estate of a male coparcener from the date of the commencement of the new Act. Thus, if the death of the coparcener is on and after the new Act came into force, the succession would be governed by the provisions of 2005 Act. If he had died prior to 05/09/2005 i.e., on 04/09/2005 and before that the succession to his estate would be governed by the 1956 Act. Thus, it becomes clear that Section 6(3) regulates succession to the joint family property held by the male coparcener, if he died on 05/09/2005 and thereafter.

A lot of confusion has arisen about the interpretation of Section 6(1) of 2005 Act. This provision was substantially similar to the similar Acts passed by the Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra states which had been passed earlier to the 2005 Act. I have already noted the Supreme Court decision up to date. Thought the decisions before 2005 disclosed difficulty in interpreting similar provisions in the State Acts, about the term `by birth’, Parliament did not modify the language in enacting Section 6(1) and has substantially used the same language but has split the sentence in paragraphs. It seems that owing to the divergence of opinions, the matter has been recommended to be placed before a larger bench.

Before proceeding further, I would quote some well-known principals regulating interpretations of the legislations.

Parliament is presumed to know the law and the surrounding law. It must be presumed to have been aware of the relevant pre-existing law (Bennion on Statutory Interpretations at Page 547 (5th Ed.). So, when the 2005 Act was enacted, we have to presume that the legislature was aware of the provisions of Hindu Law, including the law regarding adoption, under the Hindu Law. This would, therefore, include the Hindu Adoption and Maintenance Act 1956.

The provisions about the Hindu Joint Family, its constitution, its structure, rights and duties of its members were all well-known even to a common man. I have quoted some passages from the Supreme Court decisions in Surjit Lal `s case already. It is only an unmarried daughter who can be a member of the Hindu Joint Family for only till then she would be the Sapinda in the Sagotra family. The moment she marries, she would be the family member of her husband’s family as her civil legal rights in her natal family stands severed. She would have only relationship by blood ties with natal family members like here parents and siblings [See Mulla Hindu Law Para 212; AIR 2001 Supreme Court 1701; ILR 32 Bombay 169 at 179 and 180].

A joint family consists of all persons lineally descended from the common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the Joint or coparcenary property. These are the sons, grandsons and great grandsons of the holder of the joint property for the time being. “Coparcenary is purely a creature of law: it cannot be created by act of Parties…….” In Mulla’s Hindu Law para 214 the formation of coparcenary and its genesis is stated: Under Hindu Law membership of joint family is status; the joint family property has status; Coparcener-ship has status; so too the adopted son. In 9 Moor’s Indian Appeals 195 (Abraham v. Abraham), the Privy Council observes

“but parcener-ship, understood in the sense in which their Lordship have used the term, as expressing the rights and obligations growing out of the status of an undivided family is the creature of and must be governed by Hindu Law. So, all matters connected with the status under the Hindu Law will have to be considered under the provisions of the Law only. As status is a creation of law, it cannot be created by contract, estopped or even resjudicate as noted in AIR 1989 supreme Court 1834.”

Coparcener-ship, under the Hindu Law was limited exclusively to the male persons. The females were excluded from obtaining that status. In the Hindu Joint Family though the male and female issues of a coparcener were sapindas and sagotras and thus qualified to be coparceners, the male siblings i.e., the son was conferred that status based on his gender only and the daughter was disqualified only because of her gender and nothing else. So, the Parliament proposed to remove the discrimination as contented in Section 6 of the Hindu Succession Act 1956 by giving equal rights to the daughter in the Hindu Mithakshra coparcenary property as the sons have” and the 2005 Act was passed.

Under Section 10 of the Hindu Adoption and Maintenance Act 1956 a Hindu female also can be adopted. Section 12 of the Act speaks about the effect of adoption. Inter alia, it says an adopted child “shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption”. So, in the light of the “deeming” provisions, the adoptee shall be as if, he or she is the natural child of the adopter. We haveto assume that the parliament was aware of this provision, when the 2005 Act was passed.

Section 6(1) of 2005 Act uses the term “daughter” of a coparcener. According to the principles of interpretation, the words used have to be given their natural meaning:

In K.V. Muthu v. Angamuthu (AIR 1997 S.C. 628), their Lordships held that in common practice a son means a natural son born to a person after marriage. It is direct blood relationship which is the essence of the term in which `son’ is usually understood emphasis being on legitimacy. In legal parlance it may include son, son’s son, namely: the grand child and where law permits include an adopted son. The definition of the natural son stated here is fully according to the definition of “Aurasa son” in Mitakshra Law. So, whatever applies to a naturally born son would apply to the daughter also. In Uttar Pradesh and Meghalaya, under the General Clauses At, the term “daughter” is held to include an adopted daughter, where adoption is permitted by law.

The confusion, giving rise to the divergence of opinion in the decisions quoted earlier is due to the phrase `by birth’ for becoming a coparcener and the statutory dated 05/09/2005 “on and from” on which the daughter of a coparcener `becomes’ a coparcener.

If the daughter becomes a coparcener `by birth’ i.e., by fact of birth i.e., from birth, then her status will be deemed to have arisen moment she was born at any time before 05/09/2005. But Section 6 positively says” on and from the commencement of the Hindu Succession (Amendment) Act 2005, the daughter of a coparcener shall, by birth become a coparcener in her own right in the same manner as son”.

So, a question arises about the date of commencement of the status. If it is `by birth’ then the specific date 05/09/2005 mentioned stands eclipsed. Both dates cannot be accepted to stand together, as the succession event is single only. The conversion of the daughter has to be only once and forever. Both dates cannot co-exist. We cannot presume that the Parliament intended to create such an absurd situation.

`By’ is a preposition word placed before a noun or pronoun to show in what relation the person or thing denoted by it stands in regard to something else. Prepositions are of three kinds – simple prepositions, compound prepositions and phrase prepositions.

“Phrase prepositions” refers to group of words used with the force of a single preposition (see Wren and Martin High School English Grammar) (Para 368 and 373). Illustrations are given about the use of preposition `by’ as phrase preposition.

In Oxford Advanced Learner’s Dictionary, the meaning of the word `by’ is given; sixteen (16) examples are given showing the sense, which varies in the light of context. Illustrations No. 14 says “(used for giving more information about some body’s background or character); be German by birth/ a lawyer by profession…….”

So, the phrase “by birth” can mean obtaining more information about the person. In this case it about the daughter. Here by stating that she is the daughter it becomes clear that she is naturally born as the son is. Reference may be made to the decision in ILR 33 Bombay 669 Kalagavada v. Somappa. On page 660 and 661 the various shades of the phrase “by birth” are given “By birth he acquired the gotra or family of his birth”; he acquired by the very fact of birth joint ownership; “grandsons” says Mitakshara, `have by birth a right in the grand father’s estate equality with the son”; “Thus the competency being equal, the right by birth also being equal”. At page 686 it is stated `when the relation has once been brought about bybirth, the grandson becomes an entity, by himself and the continuance of that relation does not depend on the continuance of the father’s relationship to the grandfather”. So, the phrase `by birth’ can be used to expound the particular relationship between the coparcener father and his daughter. Bennion says at page 466, in his commentary to section 162, “This section states the important principle that a term or phrase may have different legal meaning in different act, or even within the same Act in it. If the term or phrase is grammatically ambiguous, it may have one of its literal meanings in one place and other literal meaning in the other”.

As noted earlier, coparcener-ship is a status which is created by law. It has to be created by a statute. It did not exist in a daughter, under the Mitakshra Law. This status was conferred by 2005 Act for the first time. It states “on and from” the daughter of a coparcener “becomes” a coparcener, which means that before that she was not, and could not be the coparcener. Such being the strong and clearest language of Section 6, we cannot by reference to ambiguous phrase preposition “by birth” cut down its stern implication that this status will arise prior to that date. In G.P. Sing’s interpretation of statute there is reference to the English case Brighton Parish Guardians v. Strand Union, where it has been stated that, when in relation to the same subject matter different words are used in the same statute there is a presumption that they are not used in the same sense.

Section 6 of the 2005 Act says “on” and “from” the commencement of the 2005 Act, the daughter `becomes’ a coparcener. Here the term `on’ indicate the time when something has to happen or happens. And the word from, as a preposition is indicative of outward movement or distance in relation to a point in space of time. In advanced Law Lexicon Book 2 at Page 1935 the term “from” is used as a function word implies a starting point, whether it be of time, place, or condition; and meaning having a starting point of motion noting the point of departure, origin etc. So, the term `on’ and `from’ as used here have different sense of meaning. In substance it may mean that the status will start on 05th September 2005 and it will continue thereafter also. Now the term `becomes’ would mean change of condition – that is entering with a new state or condition by change from the former state or condition. This meaning becomes appropriate in the case at hand because the daughter who is also a sapinda like her brother in the joint family is converted into a coparcener by removing the discriminatory bar. So, this process would show that the daughter involved here is the naturally born child of the coparcener.

Now in view of the Hindu Adoption and Maintenance Act, 1956, the adopted daughter is deemed to be the daughter of the adaptor. The deeming provision would require us to stretch the meaning even to the extent of shocking or astonishment. However the language used in Section 6, the purpose for which the 2005 Act was passed i.e., the specific purpose of removing the discriminatory bar in getting the coparcenary right by the daughter clearly show that Section 6 was not meant to confer that privilege upon any adopted daughter. It is for this reason it seems that the word coparcener daughter is used, who was to get this same status.

It is worthy of note that in all the cases under consideration no doubt is raised that the section does not embarrass the situation where the daughter was born before the 2005 Act was passed. If she was unmarried and was member of the joint family and was a coparcener’s daughter, then she possessed the required qualification to become a coparcener. If so, then `on’ 05/09/2005 as she possesses the relevant qualifications, she was entitled to `become’ the coparcener. The very fact that the section says `on’ that date she becomes the coparcener presupposes that she possesses the necessary qualification for `becoming `before that event; and thus `on’ she became the coparcener. The decision in 1950(2) All England Reports 525 (Master Ladies Tailors Case); AIR 1928 Privy Council 128 Municipal Council of Sydney v. Margret Alexander and AIR 2004 SC 4010 and 4015 will support this conclusion.

As we have come to know the very purpose in enacting the Section 6 of 2005 Act, and also why the adopted daughter could not be the coparcener for the purpose of 2005 Act, we may have to read section 6 of the Act in such a way as that can clarify the real purpose. For this purpose, a little shuffling of words in Section 6may satisfy the purpose. In Bennion on Statutory Interpretations at Page 453 (5th Ed.), he states

“if therefore the interpreter is dealing with a garbled text where the words have got into wrong order, he or she puts the words into right order and thus considering afresh how to construe the corrected text”. (This is one of the methods of purposive construction).

Thus if we slightly modify the order of the words in Section 6 by transposing the phrase `by birth’ and placing them after the word `daughter’ and before the words `of a coparcener’; and these make the sentence read as “the daughter `by birth’ of a coparcener” the intended meaning of section will be absolutely clear. This will be in accordance with the Statement of Objects and Reasons for the Act. Each and every word of Section 6 will be present in the Section; the difficulty arising from the Adoption Act will be removed and the section will be clearer to include the daughter born before 05th September 2005. In my opinion all the doubts that have arisen on account of the conflict of opinion will be settled if the above interpretation is accepted. [See AIR 1936 Privy Council 281 and 1969(3) All England Report 713 at 715 Para I and Page 717 para H and I].

*The author Shri. B.V. Jigjinni was born on 26/10/1922 at Belgaum. His father Late V.G. Jigjinni was a pleader. Shri. B.V. Jigjinni’s school education was done at B.K. Model High School, Belgaum. He completed his Law Degree from RL’s Law College, Belgaum and started his partake as an Advocate in the year 1945. Subsequently, he was appointed as Civil Judge, Junior Division from 27/07/1953. During the course of service as Civil Judge, he was promoted as District and Sessions Judge. He was designated as Special Officer, High Court of Karnataka, Bengaluru and he retired on 31/03/1978. Subsequent to his retirement he continued his practice as an Advocate in the Hon’ble High Court of Karnataka, Bengaluru and is also a consultant Advocate at M/s. Jayanth Pattanshetti Associates, Advocates, 102, Ground Floor, “Rams Infantry Manor”, No. 70, Infantry Road, Bengaluru – 560 001.

After retirement he has written several brief notes on various Acts more particularly about Adverse Possession.

He has concentrated his research work on the amendment to the Hindu Law more particularly the Section 6 and after tiresome research at the age of 97 by referring various decisions and discussions at various law libraries he has come up with this book which clearly evaporates the ambiguity about the amendment.

This book will be useful for the law students, advocates, researchers etc.

Publisher

Hindus have worshiped gods and goddesses with equal fervor since ancient times. However, the proprietary rights of females have always been suppressed to a large extent. Manavadharmasastra is the oldest constitution for the Hindu laws of ancient Indian society. Manu is mentioned in the Vedas itself and is described as the law-giver. However, the writings in Manu Smriti about women have been debated and criticized, as in reference to the status of the Hindu female, it states that:

“IX.3 Her father protects (her) in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a woman is never fit for independence.”

According to Manu, women do not have property rights, and if they acquire any property by their own, then that property will belong to the male under whose protection they are living. But in Manu Smriti, Chapter III Verses 55 to 57 it is stated that:

“where women are honored and adorned, there Gods are pleased, but where women are not honored no sacred fire yields rewards“

Nevertheless, Manu recognized a legal obligation on the part of the husband to make arrangements for his wife’s due maintenance even if he goes abroad for business purposes. The daughter’s right to inherit was also disputed as she was entitled to inherit only in the absence of a male member.

Even Mayne’s in “Hindu Law and Usage” observes as under

“The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent.”

Thus, according to the passage, female members of the family are barred from possessing the right of survivorship. Females though have the right to maintenance. Only stridhan was treated as the proprietary wealth of the Hindu female.

The Constitution of India accords socio-economic and political justice, equality of status and of opportunity assuring the dignity of person with stated freedoms. Article 14 guarantees equality. Article 15(1) abolishes discrimination and removed disability, liability or restriction on grounds of sex and ensures equality of status. Article 29(2) gives equal right to education. Earlier it was only because of the efforts of social reformers that the Hindu Women’s Right to Property Act, 1937 was enacted. Prior to 1937, there was no codified law governing the rights of the Hindu female, which were largely governed by customary practices. Under the said Act, the ideology of all the schools of Hindu Law was modified so as to give greater rights to the Hindu women by affecting not only the law of co-parcenery- but also the law of alienation, inheritance, partition and adoption. It entitled a widow to a share equal to her son, but disentitled her from becoming a co-parcener and therefore, widows only had a limited estate in the Joint Hindu Family property of their deceased husband, subject to partition. The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the coming into force of the Hindu Women’s Right to Property Act, 1937. The position of daughters’ right of inheritance as stood under customary law was still left untouched by the legislature. The Act of 1937, which was enacted to enlarge the property rights of all the Hindu women, was progressive and succeeded in strengthening the rights of widow to some extent, but much more was needed.

Grant of Absolute Ownership: Liberal Interpretation

After facing a lot of criticism on the Hindu Women’s Right to Property Act, the Parliament decided to come up with an improved legislation dealing with the property rights of women and enacted the Hindu Succession Act, 1956. Section 14 of the Act brought much needed reforms towards the rights of the Hindu female, making them owners of the property in her possession in absolute terms. The Act also sought to remove the disability and discrimination in the right to possess and enjoy the property by a Hindu female, thus paving the way for removing the restrictions under Shastric Law. It was an effort to strike a balance between Shastric law and contemporary Hindu Law.

Section 14 of the Hindu Succession Act, 1956 reads as under:

“14.(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.”

Now, a Hindu female could acquire absolute ownership in property by way of inheritance, maintenance, prescription, decree, agreement, gift, will or partition. Previously, a property acquired by a woman from her husband was not her `Stridhan’, and on the death of that woman, such property would revert back to the heirs of her husband and not her heirs. The powers of the Hindu female to dispose off the property were also very limited. But after 1956, due to reformative judicial reasoning, the scope of section 14 came to be interpreted in the widest possible manner. Now, any property, movable or immovable, and in possession of the widow in lieu of her right to maintenance, gets converted into an absolute estate. Even the right to possess, as against actual possession, has been recognized as possession for grant of absolute estate. This is, however, subject to the provisions of Section 14(2).

A more elaborate discussion about the rights of a female Hindu before and after the coming into force of the Hindu Succession Act 1956, and particularly the provisions of Section 14 of the Act, is contained in a three Judge Bench judgment of Hon’ble Supreme Court Court in V. Tulasamma and others v. Sesha Reddy (Dead) by LRs reported as 1977(3) SCC 99. Dealing with the provisions of the Hindu Succession Act, 1956, the Court observed :-

“The Act is codifying enactment, and has made far-reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate…………”

Fazl Ali, J., in his exhaustive discussion in the said judgment dealing with the question of the pre-existing right of a Hindu widow, opined that the provisions of the Section must be liberally construed in order to advance the object of the Act, which is “to enlarge the limited interest possessed by a Hindu widow” in “consonance with the changing temper of the times”.

Thereafter, the provisions of Section 14(1) have been applied most liberally in favor of a Hindu widow. However, at times the courts have leaned towards giving effect to Section 14(2) over Section 14(1), particularly in case of wills executed after 1956 granting limited estate to a female. Reference can be made to the decisions rendered by the Hon’ble Supreme Court in Ranvir Dewan v. Rashmi Khanna, 2018 AIR 62 SC, Shivdev Kaur (D) By Lrs. v. R.S. Grewal, 2013(4) SCC 636. Such disposition of property in my opinion, is nothing but a conferment in deemed recognition of the pre- existing right of the Hindu female for a claim of maintenance. The reformative judicial interpretation of law should not be allowed to be diluted to give precedence to Section 14(2) and the same has to be read down so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long-needed legislation by giving widest possible interpretation to section 14(1) of the Act.

Interest in co-parcenery: Prospective or Retrospective

The Hindu Succession Act, as noticed above, made a revolutionary change in the law for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding the succession of her husband’s property as also to her father’s property. But even after fifty years of Independence, a woman was still neglected in her own natal family as well as in the family she married into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.

With these points in mind, the 174th report of the Law Commission, “Property Rights of Women: Proposed Reforms under the Hindu Law” recommended amendments, mainly in Section 4 and 6, which have been implemented through the Hindu Succession (Amendment) Act, 2005, to provide that the daughter of a co-parcener in a joint Hindu family, governed by the Mitakshara Law, shall, by birth, become a co-parcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the property as that of a son. All women are now entitled to be treated at par with their male counterparts and daughters, whether married or unmarried, are co-parceners in the ancestral (joint) family property. They can inherit through intestate as well as testamentary succession. They are also allowed to hold property in all forms and by all means, at an equal standing as males. However, this comes with a specific rider that the amendment will not affect or invalidate any disposition or alienation, including partition or testamentary disposition, which has taken place before 20.12.2004.

Contentiously, some have argued that these reforms go beyond addressing the grievance of women and instead create reverse discrimination for male members. In fact out of 16 class 1 heirs, 11 are females and only 5 are males. This aspect has been sought to be addressed by the 204th report of the Law Commission, by recommending to include the `son’s daughter’s son’ and the `daughter’s son’s son’ within the `Class I’ heirs. Still further 208th report of the Law Commission suggested to include family arrangement and oral partition in the expression “Partition” as mentioned in the explanation to section 6, understandably to avoid ignition of any dispute between the parties where there is none, and maintain harmony amongst family members.

Like any other amendment in a statute, the 2005 amendment also suffered from contradictory interpretations by courts. The Karnataka High Court interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, whereas the Full Bench of the Bombay High Court interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. The Hon’ble Supreme Court, in 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 co-parceners 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 same benefit to a daughter of a co-parcener who had died much before 9.9.2005. This created a divergence of legal approach and the matter has now been referred to a larger bench for resolution in the case titled Civil Appeal No. 32601/2018 Vineeta Sharma v. Rakesh Sharma. Although, if we glance at the well settled principles of Hindu law, a co-parcener has a share in the property by birth, and the date of death ought not to make any difference in the determination of entitlement of a share in the co-parcenary. The Amending Act makes the daughter a co-coparcener, having a birth right at par with the son. The interpretation cannot be restrictive so as to defeat the very object of the Act, which was to end the discrimination that existed for decades. Thus an expedient resolution through legal discourse is necessary on the issue to avoid uncertainty and delay in the implementation of the Amending Act in the right perspective. Additionally the question of grant of right in the joint family property of the in-laws also need to be further debated and deliberated to safe guard her interest in the matrimonial home.

Principles of Succession: Scope for Further Reforms

Advancing further, another provision of Hindu Succession which needs attention would be Section 15, which provides a definite and uniform scheme of succession to the property of a female Hindu who dies intestate. There are also rules set out in Section 16 of the Act which provides for the order of succession and the manner of distribution among heirs of a female Hindu. The property is inherited depending on the source of acquisition or manner of inheritance of property. But in case of the self-acquired property of a Hindu married female dying intestate her property devolves on her husband’s heirs. This means that her paternal and maternal heirs do not inherit anything, but the distant relations of her husband would inherit shares as her husband’s heirs.

Since subsequent to the enactment of the Hindu Succession Act, 1956, there have been sweeping changes in the social structure in the past few years. The consequences are that women are owning property out of their own earnings, have higher education enrollment, getting greater legislative representation and are socially and economically independent. That in the 207th report of the Law Commission it has been recommended that in the present scenario, when a woman is entitled to inherit property from her parental side as well as from her husband’s side, it will be quite justified if equal right is given to her parental heirs along with her husband’s heirs to inherit her property. Therefore, as a necessary consequence of changing times, Section 15 should be amended, so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs, as mentioned in Clause `a’ of Section 15, the property would devolve on her husband’s heirs and also on the heirs of her paternal side, whomsoever is closer in degree of relationship.

The 174th Report of the Law Commission of India has also examined the subject of “Property Rights of Women:Proposed Reforms under the Hindu Law”, and after eliciting views from the public, had noted that the rules of devolution of the property of a female who dies intestate reflects patriarchal assumptions. The 174th Report had explained the position thus:-

“2.5 Again, the patrilineal assumptions of a dominant male ideology are clearly reflected in the laws governing a Hindu female who dies intestate. The law in her case is markedly different from those governing Hindu males. The property is to devolve first to her children and husband; secondly, to her husband’s heirs; thirdly to her father’s heirs, and lastly to her mother’s heirs. The provision of section 15(2) of HSA is indicative again of a tilt towards the male as it provides that any property she inherited from her father or mother should devolve, in the absence of any children, to her father’s heirs and similarly, any property she inherited from her husband or father-in-law, to her husband’s heirs. These provisions depict that property continues to be inherited through the male line from which it came either back to her father’s family or to her husband’s family.”

Conclusion

Thus, despite radical changes having been brought about by various enactments, which have completely altered the position of the Hindu female in the present days cenario, various material recommendations are yet to find place in the statute.

In the male dominated society, women are discriminated against in all matters, much so in rural India on the pretext to plug the problem of fragmentation of land holdings into smaller parts, or the property going outside of the family. As per a study conducted by the World Bank Legal Research Group in 2010, 57 countries had made reforms that strengthened women’s economic rights, including 28 countries that had eliminated all of the constraints. The law is definitely evolving but it is merely a tool and what is needed is social transformation. There has been tremendous progress made in closing many of the gender gaps in formal property rights and legal capacity. However, notwithstanding the constitutional guarantee of equality and fairness, much more is required to be done by raising awareness and bringing about a change in the social mindset. Change is possible, but it is a just a beginning as change is not complete.

(The author is a lawyer practicing in the High Court of Punjab and Haryana at Chandigarh and the views express are personal only)

“We must work together to ensure the equitable distribution of wealth, opportunity, and power in our society.“-Nelson Mandela

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. Every citizen of India is guaranteed equality before law and equal protection of the laws, irrespective of his gender, caste, creed, and race. 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 deliver 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.

Prior to the enactment of the Hindu Women’s Right to Properties Act 1937, women were not entitled to a share in the Joint Family Property, and succession was governed by survivor ship. As per the rule of survivor ship, on the death of a member of 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.

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 has been defined in Collins Dictionary as – “a form of joint ownership of property, especially joint heirship”. Black’s Law Dictionary defines it as “persons to whom an estate of inheritance descends jointly, and by whom it is held as an entire estate”. Oxford Dictionary further explains it as – “A person who shares equally with others in the inheritance of an undivided estate or in the rights to it”. Mayne’s “Hindu Law and Usage” explains Coparceners by stating that, “The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent”. Thus, it clearly states that the male members, who traditionally would have offered the funeral cakes to their ancestors, would by birth have rights in the coparcenary property i.e. right of survivorship.

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. It commences with a common ancestor and includes a holder of joint property, and only those males in his male line who are not removed from him by more than three degrees. Thus, while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great-great- grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder. The share of coparceners in the joint coparcenary property is always fluctuating, which gets diminished and enlarged with the birth and death of a coparcener in the family.

The coparcener must be a member of the family, but a member of the family need not always be a coparcener. An HUF, (Hindu Undivided Family), can consist of a very large number of members, including wives as well, and distant blood relatives. The desire to retain the Mitakshara coparcenary, along with principals of intestate succession in the Act led to many complexities. While a daughter would get only a share from the presumed (notional) partitioned property of her father, the sons continued to get a share in the coparcenary property, as well as the notionally partitioned property.

The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, with regard to the joint and undivided property, that he, that particular member, has a definite share in the said property. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest‘. If a Mitakshara coparcener dies, immediately on his death his interest devolves on the surviving coparceners. 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.”

In a HUF, the responsibility of the Karta is to manage the HUF property. He is the custodian of the income and assets of the HUF. He is liable to make good to other family members, with their shares of all sums, which he has misappropriated or which he has spent for purposes other than those in which the joint family was interested. His role is crucial. He is entrusted not only with the management of land/assets of the family, but also is entrusted to do the general welfare of the family. His position is different from the manager of a company or a partnership. His role as a manager of the property can be questioned by a coparcener, if the same is based upon fraud, misrepresentation or is not for legal necessity of the coparcenary.

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.

The said question of the amendment being prospective or retrospective came before a division bench of Karnataka High Court in 2010 (57) RCR (Civil) 160 Pushpalatha N.V. v. V. Padma, which held that:

“Therefore, it follows that the Act when it was enacted, the legislature had no intention of conferring rights which are conferred for the first time on a female relative of a coparcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a coparcener was not conferred the status of a coparcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to co-parcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force, i.e., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a co-parcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a co-parcener is conferred on a daughter of a co-parcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a co-parcener who is born after the Act came into force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956.

57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of coparcenary property and co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of coparcenary governed by Mitakshara school is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a coparcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a coparcener ensures to her benefit by birth makes the said provision retro active. Though on the date of the birth she did not have such right because of the law governing on that day by amendment the law, such a right is conferred on her from the date of the Act of 1956. A historical blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful right to which the daughter was entitled by virtue of the Constitution is restored to her from the date of her birth. This, the Parliament has done by using the express words that a daughter of a coparcener shall by birth become a coparcener in her own tight in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son.”

Thus, the said Division Bench held that the status of a coparcener is conferred on the daughter by birth, under the amended section, if she is born after 17-06-1956, i.e. the day on which the Hindu Succession Act 1956, came into force. Thus, by virtue of the amendment in section 6, the daughter, as coparcener in a Joint Hindu Family, has the same rights in the coparcener properties, as she would have, had if she had been a son.

The said question also came to be analysed by the Full Bench of Bombay High Court in 2014(4) RCR (Civil) 620 Shri Badrinarayan Shankar Bhandari and others v. Ompraskash Shankar Bhandar,

While deciding the below mentioned questions of law: –

• Whether Section 6 of the Hindu Succession Act 1956 as amended by the Amendment Act is prospective or retrospective in operation?

• 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?

It was held that

“52. It is necessary to note that the pre-amended Section 6 dealt only with the devolution of the property on the death of the coparcener and therefore the marginal note to pre-amended Section 6 was “Devolution of interest in coparcenary property”. However, in the amended Section 6, only sub-section (3) provides for devolution of property upon the death of the coparcener. In other words, sub-section (1) of pre-amended Section 6 has been converted into sub-section (3) of the Amended Section 6 with certain modification. But sub-section (1) of Section 6 is entirely new provision, which confers new rights on a daughter of coparcener without contemplating death of the coparcener. It appears to be sheer inadvertence on the part of the draftsman of the Amendment Act, 2005 that marginal note of Section 6 is not amended, though Parliament drastically amended existing law on the subject, by conferring on crores of daughters rights in the coparcenary property, even without reference to death of the coparcener in sub-section (1) & sub-section (2) of the Amended Section 6.

53. In view of above discussion, in our view the correct legal position is that Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to 9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters who died before 9 September 2005 do not get the benefits of amended Section 6.”

*******

“59. Having carefully gone through the above reasoning and conclusion in Pushpalatha case (supra), while we agree that the legislative intent was to protect interest of the third parties who acquired interests in the coparcenary property and also to protect the interest of the scarceness here coparcenary became their separate properties, as already discussed in paragraph 45 hereinabove, it is not possible to agree with the view in Pushpalata case (supra) that a daughter of a coparcener born before 9 September 1996 (sic 2005) became a coparcener by birth anterior to the amendment. As already indicated earlier, clause (a) of sub-section (1) of amended Section 6 only applies to daughter born on or after the date of commencement of the Amendment Act i.e. born on or after 9 September 2005. It is only by virtue of clauses (b) and (c) of sub-section 1 of Amended Section 6 that the daughters born before 9 September 2005 acquired rights in coparcenary property and acquired the status of scarceness with effect from 9 September 2005. For the reasons already indicated in this judgment, the view taken by the Karnataka High Court in Pushpalata case (supra) that a daughter of the coparcener gets right in coparcenary property with retrospective effect from 17 June 1956 or from the date of birth prior to 9 September 2005 does not commend to us. As held by us earlier, the provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcenary property with effect from 9 September 2005.

60. In the above view of the matter, so far as questions (b), (c) and (d) are concerned, we hold that the Amendment Act applies to daughters born any time provided the daughters born prior to 9 September 2005 are alive on the date of coming into force of the Amendment Act i.e. on 9 September 2005. There is no dispute between the parties that the Amendment Act applies to daughters born on or after 9 September 2005.”

Thus, it was laid down by the full bench of Bombay high court that the said amendment is prospective in nature.

Thus, whereas the Karnataka High Court 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 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) 9522, 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.

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

“23. The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”

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.”

Although the said Civil Appeal was ultimately ordered to be heard along with similar matters already pending, yet the final outcome of the same is still awaited. Thus, despite so many years, the fate of the amendment, and the scope of the its interpretation, is still under confusion, due to the unsettled issue, and apparent conflict in judicial pronouncements.

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.

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.

An 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 resolved but not fully solved by judicial precedents.

“Say not you know another entirely, till you have divided an inheritance with him.” – Johann Kaspar Lavater

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

Note: kindly note the dates of enforcement of various acts which are mentioned in this article.

Despite heavy protest by the president of India. The Hindu Marriage Act, 1955 was enforced on 18th May 1955. Section 5 of this act defines “various conditions for solemnizing marriage between any two Hindu”. Sub section 1 of this section lays down a very major condition that “neither of the party has a spouse leaving at the time of the marriage”.

Section 11 of this act defines the Void marriage, which reads as “any marriage solemnised after the commencement of this act shall be null and void and may on a petition presented by either party there to against the other party be so declared by a degree of nullity if it contravenes any one of the conditions specified in clause (1), (4) or (5) of section 5”.

According to section 5 and section 11 of Hindu marriage act, a married person cannot perform second marriage in the lifetime of his first spouse and if he or she do so, then under section 11 of this act, the second marriage shall be declared null and void by any civil competent court.

The Hindu succession act, 1956 was enforced on 17th June 1956 in this country. Section 10 of this act defines a “distribution of properties among heirs among the clause first of the schedule.” The property of an intestate shall be divided among the heirs in the clause 1st of the schedule in accordance with the following rules. Rule 1– the intestates, or if there are more widows than one, all the widows together shall take one share.

On the other hand, Hindu adoption and maintenance act, 1956 was enforced on 21st December, 1956. According to explanation of section 7 of this act which defines the “capacity of a male Hindu to taken in adoption”. If a person has more than one wife leaving at the time of adoption the consent of all the wifes is necessary unless the consent of any one of them is unnecessary or any of the reason specified in the preceding proviso.

According to a judgement mentioned in 2009(4) RCR CIVIL on pg.401, “when there are two special acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail.”

In this article, as I have mentioned above that the Hindu marriage act,1955 was enforced on 18th May 1955, Hindu succession act enforced on 17th June 1956 and Hindu adoption and maintenance act was enforced on 21st December 1956.

So, as Hindu Succession and Hindu adoption and maintenance act, were passed subsequent to Hindu marriage act, and both these acts supersede Hindu marriage act. Therefore, any male married Hindu can perform number of marriage in the lifetime of his first wife after enforcement of Hindu Marriage Act.

If all these above-mentioned acts exist as it exists before, then one prostitute lady will get her share in succession of disease husband and similarly according to section 16 of Hindu marriage act, ille-gitimate children born out of void and voidable marriage will get their share in succession from the property of their disease father.

Conclusion

According to my own opinion, if we go with the history of India there was no codify law regarding Hindu marriage, adoption and succession act etc prior to Independence. Therefore, at that point of time Raja Maharajas and Zamindars and higher-class body and ruling class body of married male section usually perform more than one marriage. India became Independent state on 15th August 1947. At that point of time, such type of problem was persisting as customary Hindu law, gave permission to such type of marriage. To face this situation Hindu Succession Act, 1956 and Hindu adoption and maintenance act, 1956 covered the issue of more than one wife of legally wedded male Hindu or it may be seeming to be a flow in draftsmen ship of both the abovementioned act. Lastly, I would say that both the mistake as I discussed above should be amended. So, such type of problem comes to end and therefore, one Hindu can tell with proud that uniform civil code still exists in India. Otherwise, both Hindu and Muslim make a serious allegation upon male member of any community that he can perform number of marriage with no of lady of their community.

Whether Hindu Succession Act, 1956 has abolished the concept of J.F.P. of Hindu Law?

1. Hindu Law is traditionally classified into two schools of law, namely: Mitakshra and Dayabhaga. Wherein Dayabhaga school prevails in Bengal and Mitakshra school prevails in other parts of India. The concept of Joint Hindu Family is defined in the Article 212 of Mulla Principles of Hindu Law and Article 213 of the same principle defines the concept of the Coparcenary rights i.e. ideally much narrower body than joint family. It only includes those persons who acquire rights by birth in the joint or coparcenary property. These persons include sons, grandsons and great-grandson of the holder of the joint property for the time being. In other word, three generation next to the holder in unbroken male descents. Moreover, Article 217 of the above principles clearly states that no female can be a coparcener under the Mitakshra school and Article 218 further classify the coparcenary rights into 2 parts i.e. (1) unobstructed heritage (2) obstructed heritage. Wherein property in which a person acquires an interest by birth is called unobstructed heritage whereas property the right on which accrues not by birth but on the death of the last owner without leaving male issue is called obstructed heritage.

Therefore, unobstructed heritage devolves by survivorship whereas obstructed heritage devolves by succession. Further, Hindu law under its Article 220 has classified property into the 2 classes: (1) Joint Hindu family property (2) Separate property.

Joint Hindu Family property: may be divided according to sources which it come into-

• Ancestral property: According to Article 223 all properties inherited by a male Hindu from his father, fathers father, or fathers fathers father.

• Separate property of coparcener thrown into the common coparcenary stock: property jointly acquired by the member of’ the joint family with the aid of the ancestral property is joint family property. Whereas property jointly acquired by the member of the joint family without the aid of the ancestral property may or may not be the joint family property. Whether it is so or not would be question of fact in each case. Ideally, the term joint family property is synonymous with coparcenary property.

According to article 236 of the above mentioned act, property belonging to a joint family is the ordinary managed by the father or the other senior member for the time being of the family, the manager of the joint family is called Karta and according to the article 242 of the abovementioned act, the manager of the joint Hindu family has a power to alienate for value joint family property so as to bind the interest of both adult and minor coparcener in the property provided that the alienation is made for legal necessity or for the greater benefit of the state.

According to Sitara Lal v. Shiv Kumar, 1985 HAP 74 under Punjab customary law and law son have no right to partition against their father because sons do not have any right by birth.)

2. On the other hand, section 3(f) of the Hindu succession act 1956 defines “heir”- as any person male or female who is entitled to succeeded to the property of an intestate under this act. Further, section 3(g) of the same act defines “intestate”- a person is dimmed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.

Whether article 220(1) ancestral property of Mulla has been abolished by section 4,8 and schedule of Hindu Succession Act, 1956 ?

Section 4 of Hindu succession act, 1956 clearly laid down the overriding effect of the act which reads as “save as expressly provided in the act- any text, rule or interpretation of Hindu law or any custom or usage as part of that law enforced immediately before the commencement of the act should cease to have effect with respect to any matter for which provision was made in the act.”

But Hindu Succession Act, 1956 which was only enforced to amend and codify the law relating to intestate succession among Hindu and include in its section 6 and 30 – Joint Hindu Family governed by Mitakshra law. So, here it is necessary to mention that Hindu Succession act cross its limit and enter into a concept of Hindu law. Both law was merge and mixed up.

Section 8 of the Hindu Succession Act, 1956 laid down scheme of the succession to the property of Hindu dying intestate. A Sons son was not mentioned as an heir under clause 1st of the schedule therefore, he could not get any right in the property of his grandfather under the provision. The right of the Sons son on his grandfather property during the lifetime of his father which exist under the Hindu Law as enforced before the act was not saved expressly by the act and therefore, the earlier interpretation of the Hindu law giving a right by the birth in the joint property has cease to have any effect. Thus, the property which devolve on a Hindu on the death of his father intestate after the coming in the force of Hindu succession act, 1956 did not constitute HUF property consisting of his own branch including his sons.^[1], ^[2].

Whether article 220(2) has been abolished by Hindu Succession Act, 1956 ?

Once a property is thrown into common hotchpotch, it is necessary that the exact detail of the specific date, month, year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch must be clearly pleaded and mentioned which is legal requirement due to order 6 rule 4 of CPC, which provides that all necessary factual detail of the cause of action must be clearly stated.

Undoubtedly, an HUF can exist even if paternal ancestral property is inherited prior to 1956 and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestral.^[3], ^[4].

Conclusion

My personal opinion upon the above mentioned both the point are firstly, Hindu succession act, 1956 till today neither abolished Hindu law and ancestral property in its any section. Secondly, Mulla article 220 define joint family property and separate property and article 218 define unobstructed heritage when property in which a person has acquired an interest by birth and obstructed heritage property the right to which accrues not by birth but on the death of the last holder. Hindu Succession act, which basically governs with intestate succession among Hindu cover joint Hindu family governed by Mitakshra law in section 6 and section 30 and even Benami transaction prohibition act, 1988 and 2016 (amended) also deal with the legal concept coparcener and Hindu undivided family meaning thereby till today Hindu succession act recognise the existence of joint Hindu family Mitakshra law. The main point to be noted in AIR SC 1753, the property which devolve on a Hindu on the death of his father intestate after the coming into the force of Hindu succession act, 1956 did not constitute HUF property but according to supreme court judgements mentioned in the above paragraphs HUF properties are abolished due to section 8 of Hindu succession act. On the other hand, AIR 2016 DELHI 120 and AIR 2017 DELHI 15 has laid down two exceptions to these concepts. Firstly, HUF property remains continue in case HUF existed and continued before and after 1956 and second exception is after 1956, a person who owns the self-acquired property throws such property into a common hotchpotch.

Moreover, in case if joint family property abolishes then there would be no chance of filing admission suit, relinquish deed and memorandum of partition (family settlement).

Therefore, old concept of joint family property is still to be maintained along with Hindu Succession Act, 1956