What this Article is about:

The object of this article is to examine the scope of impact of female coparcenership on Hindu law, both traditional and statutory, in so far as it affects right to property, including inheritance and partition.

Historic perspective – common law of Hindus:

The origin of the application of traditional concepts of Hindu law is traceable to the advent of British Rule of this country. In different Presidencies [Madras, Bombay & Calcutta], where British courts were established, British Judges administered Hindu law as under stood by them, by relying upon the Sanskrit texts of yore and evidence of custom, if any adduced in the case.

The enactments regulating the functioning of Civil Courts, prevailing in different parts of British India, known as Civil Courts Act, specifically mentioned that the personal laws should be applied while dealing with parties governed by certain religion.[1] Thus, the traditional Hindu Law, developed by judicial decisions, came into existence. Taking cue from how law developed in Britain case by case, and came to be known as common law of England, one can say that traditional Hindu law is common law of Hindus in this country.

Two schools of Hindu Law:
Hindu Law was classified into two main schools of law, Mitakshara and Dayabhaga. Main feature of Mitakshara law lies in classifying the property as ancestral and separate property of a Hindu. This School recognises right by birth in ancestral property. Hence it permits the son to claim partition from the father in regard to ancestral property. In Dayabhaga school, the concept of property right by birth and claiming partition from father during his life time are absent. Dayabhaga school is confined to Bengal region. Mitakshara, with variant sub-schools, has been in force in the rest of British India.

The above distinction would be necessary to be borne in mind for appreciating the application of different provisions of Hindu Succession Act of 1956 with its latest amendments.

Hindu concept of ownership of property:

Hindu system of property is distinct from British system of ownership. A learned author has pithily stated thus, about how separate property would become joint family property: A Hindu may start with nothing and make a self-acquired fortune by dint of his own ability and exertions; and he is the absolute owner of the estate.

But in a couple of generations his offspring would have ramified into a joint family, exactly like a banian tree which started as a single shoot. Absolute, unrestricted ownership, such as enables the owner to do anything he likes with his property, is the exception. The father is restrained by his sons, the brother by his brothers, the woman by her successors. If property is free in the hands of its acquirer, it will become fettered in the hands of his heirs. Individual property is the rule in the West; corporate property is the rule in the East.[2]

Few settled elementary aspects of traditional Hindu law stated:

A few first principles of Mitakshara Hindu law, well settled should be now stated as part of the historic perspective. They are:

• The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship.
   
• There is no presumption that a family, because it is joint, possesses joint property.
   
• Hindu coparcenary is a much narrower body. A Hindu joint family consists of males and females; daughters born in the family are member of it till their marriage and women married into the family are equally members of the joint family. The whole body of such family, consisting of males and females, constitutes a sort of corporation, some of the members of which are coparceners, that is person who on partition would be entitled to demand a share while others are only entitled to maintenance.[3]
   
• Under traditional Mitakshara Hindu law, when male dies his share devolves upon his son or sons by the rule of survivorship. If partition takes place then rights get crystallised.[4] Female members of the family are not coparceners under this traditional law.
   
• Property obtained by a coparcener at a partition is ancestral property in the hands of that person as regards his male issue.[5]

A neat summary of traditional concept of Hindu law is found thus stated by Supreme Court:

According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. 11-27).

The incidents of co-parcenership under the Mitakshara law are:

1. first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person;
2. secondly, that such descendants can at any time work out their rights by asking for partition;
3. thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest;
4. fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common;
5. fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and
6. sixthly, that the interest of a deceased member lapses on his death to the survivors.

A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.

In Sundarsanam Maistri v. Narasimhulu Maistri and Anr,(1902) ILR 25 Mad 149 at p.154 Mr. Justice Bhashyam Ayyangar stated the legal position thus:- "The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body [Gan Savant Bal Savant v. Narayan Dhond Savant,(1883) ILR 7 Bom 467 and Mayne's Hindu Law and Usage, 6th Edition, paragraph 270] and the possession of property by such corporate body.

The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz., the undivided state--it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family".

# Adverting to the nature of the property owned by such a family the learned Judge proceeded to state thus:
"As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is, owned by the family as 'a corporate body and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body".[6]

• The aforesaid basic concepts of traditional Hindu Law would remain relevant for appreciating the question as to how far the provisions of Hindu Succession Act altered or abrogated it.

How statute made inroads:

• Hindu Succession Act came into force from 17th June 1956. It touched upon the field of inheritance and not partition. It proclaims to be an enactment to amend and codify the law relating to intestate succession among Hindus.
• Section 4 of the said Act contains overriding provision.[7] In effect it states that any [1] text [2] rule or [3] interpretation of Hindu law or [4] any custom or [5] any usage - as part of that law in force immediately before the commencement of the said Act, shall cease to have effect.
  
  However this result will take place if provision is contained in the said Act relating to such matter. So, one has to examine the provision of the H S Act and then find out whether it is in modification of the traditional law. For example, when a father dies leaving behind a son and daughter, under old rule of Hindu law the daughter would not inherit. But sec.8 of H S Act mentions Class I heirs to inherit in such circumstances. In Class I, daughter is also covered. Thus, it is apparent that old text or rule of Hindu law that only son inherits to the estate of father is not tenable because it is a matter for which provision is made in the Act. Another example is about the widow's right. Under old rule of Hindu Law, widow took only life interest. But sec.14[1] of the Act gives her absolute estate. Thus the H.S.Act occupies several branches of old text or rule of Hindu law.
   
• But when it comes to over-riding the enactments occupying the field covered by the Act, the pre-existing enactment should be inconsistent with the provision in H S Act.. In that event Hindu Succession Act would override such enactment. One easy example is Hindu Women's Right to Property Act of 1937 which conferred only limited interest to the widow who would inherit her husband's share in the Coparcenary property. But sec.14[1] of the H S Act gives absolute right to the woman. This is an instance of inconsistency between the two statutes and as such the enactment of 1937 would not remain in force.
   
• After 2005 Amendment to Sec.6 of H S Act the daughter has been elevated to the position of a coparcener as regards the joint family property. This is another example of overriding provision from the old text of Hindu law.
   
• Doing away the concept of pious obligation after the Amendment of 2005 is another example of old text of Hindu Law ceasing to exist.
   
• Under old rule of Hindu Law the coparcener could not make a will of his undivided interest in coparcenery property. Sec.30 of H S Act makes provision enabling coparcener to will away his undivided interest in coparcenary property. Thus old text of Hindu Law ceases to exist in this field.
   
• Under old Hindu law the sons who inherit the property from father would take it as coparceners. Joint tenancy would have applied between them. But what is inherited after H S Act would devolve on multiple heirs as tenants in common. Thus sec.19 of H S Act makes the old concept cease to exist.

Concept of joint family property, alternatively known as coparcenary property, has not been done away with by any new provision of law. Its ramifications are curtailed. This is evident from old and new sec.6 of H S Act.

What is the current statutory scenario:

• It is worthwhile to examine what was sec.6 of H S Act as it originally existed. This would be useful to understand the implications of present sec.6 of H S Act. It may be noted that said section deals with Mitakshara school and not Dayabhaga school because of the inherent differences between the two as already adverted to previously.
   
• Section 6 as originally enacted reads thus:
  Devolution of interest in coparcenary property. SEC. 6.
  
  When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
  
  Explanation 1-For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would haw 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.
  
  Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
   
• This section related to inheritance of property known as coparcenary property, or popularly known as joint family property. The first part of the section preserved the pristine principle of law of survivorship.
• However, by its proviso, the statute made inroad into this pristine law. If deceased has left behind any female heir mentioned in Class I[8] or a male heir of a female relative enumerated there, then the devolution of property of such deceased person would be under the H S Act, which is mentioned in sec.8, read with Class I of the Act.
   
• What would be the share of the deceased to be reckoned for such purpose of devolution? For this purpose, a fiction of partition immediately before his death is envisaged in Explanation I.
   
• In other words, a male coparcener dying intestate or testate, will have ‘x' quantity of share as if he had obtained partition just before his death and such quantity of share would devolve under sec.8 to all the heirs in existence covered by Class I, if he leaves behind a female heir contemplated by the Class I.
   
• Imagine a family where there is no female heir answering the description mentioned in Class I, then the old rule of survivorship would apply under the original sec.6 of H S Act.[To illustrate: F, a Mitakshara father, has got a wife and two sons; they have got coparcenary property in their hands. The wife of F dies, leaving behind husband and two sons. In due course F dies. He has not left behind any female heir mentioned in Class I of H S Act. Therefore his share would devolve by survivorship to the two sons under sec.6[1], without the Proviso coming into operation.
   
• In the same illustration, if there is any one female heir, such as a daughter to F, surviving F, or for that matter if F died survived by wife, then it is as if F died by deemed partition with his two sons, thus having one-third share when he died.[9] That one-third would devolve under Class I of H S Act to the two sons and to the daughter [ or wife as the case may be] equally as tenants in common, in view of sec.19 of the Act. The sons in such case would have their inherent 1/3rd right each as coparceners and each would obtain 1/9th [1/3rd of F, divided by three heirs] and the daughter would get 1/9th of the whole estate.[10]]

Explanation II of old Sec.6 kept intact the old concept that a divided coparcener [son] would not inherit when father dies.

Change brought about in 2005 may be now considered:

In 2005 the entire section 6 was completely changed. It is quoted below for convenience of reference:

Devolution of interest in coparcenary property:

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall-

1. by birth become a coparcener in her own right in the same manner as the son;
    
2. have the same rights in the coparcenary property as she would have had if she had been a son;
    
3. be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 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 coparcenery property shall be deemed to have been divided as if a partition had taken place and:

1. the daughter is allotted the same share as is allotted to a son;
    
2. 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
    
3. 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 (39 of 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 (39 of 2005), nothing contained in this sub-section shall affect:

1. the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
    
2. 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 (39 of 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 (39 of 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.

Analysis of the Section:
The analysis of the above section 6[1] sub-clauses [a], [b] and [c] will show that the daughter was firstly elevated to become a coparcener by birth. Consequently, she got equal right like a son in regard to coparcenary property. Just as daughter acquired right as coparcener, she became subject to its liabilities also[11].

Any reference to Hindu Mitakshara Coparcener would cover a daughter also. The proviso safeguards disposition, or alienation which took place before 20th December 2004. Such disposition or alienation would take within its fold the partition or will [testamentary disposition]. In other words, if coparceners had entered into any partition or any coparcener had willed away his share and expired before 20th Dec 2004, such transaction would not be disturbed by the elevation of daughter as coparcener. By the Explanation it is clarified that the partition should be by registered deed or by court decree, if it has to be saved in this manner.

Legal Impact Explained:
It is submitted that the provision of sec.6[1], as explained above, clearly indicates that if there is a Mitakshara joint family in existence, having coparcenary property, as on the date when the provision of law came into force, the daughter of such coparcener would become a coparcener. For example, if there is a father and a son as members of coparcenary, and if they have daughters, all of them would be coparceners.

[Traditionally, as between father and son they had half share each as coparceners. Suppose the father has one daughter and a son and that son has only one daughter, it would be as if there are in all four coparceners. What was half would become one third between the three coparceners, namely father son and daughter. The one-third right of the son would be halved between him and his daughter as coparcener.(For easy understanding of the concept, one can say that there is statutory sex change of daughter as coparcener.)].

The very fact that the proviso protected transactions prior to 20-12-2004, [the date of introducing the Bill in Parliament] is pointer to show that a daughter born even before the Amendment Act was intended to be given the said benefit. That is why certain time-limited transactions are saved from its impact. The daughter in existence when the Amendment Act came into force, and those who would be born after the Act, are the beneficiaries of the amended law. Date of birth and marital status of the daughter is not relevant.

Subsection [2] is explanatory of the ramification of conferment of Coparcenary right to a daughter. She holds the property as coparcener- held by her with the incidents of coparcenary ownership- makes it clear. 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. She can will away her right in view of sec.30 of H S Act already existing and enabling testamentary disposition of undivided coparcenary interest. Seeking partition is one of the incidents of such coparcenary ownership, without doubt.

Sub-section (4) does away the traditional concept of pious obligation of son. However it is made prospective by specifically saving it for debts incurred before the enactment of the sub-section.

Right to claim partition is ensured:

The very concept of holding property as coparcener gives the daughter a right to seek partition of the coparcenary property, if there is a property available for partition. The crucial words, shall be held by her with the incidents of coparcenary ownership leave no room to doubt that the intention was to make her a full-fledged coparcener of the joint family. Coparcener's right to claim partition is one of the incidents in traditional Hindu Law. That is conferred on a daughter by the statute.

It has been pointed out earlier in this article that the overriding of the Act under section 4 of the Act regarding old rules of Mitakshara law is only regarding what is provided in it. Act does not touch anything about partition of coparcenary property either by male or female coparcener. It is left to the traditional concept of Hindu law. Hence, it is submitted that sub-section 1 and 2 of sec.6 bring about revolutionary right to a daughter by elevating her as coparcener and enable her to claim partition of coparcenary property.

Inheritance:

Sub-section (3) of sec.6 touches upon the aspect of inheritance of coparcener's right. It is old sec.6(1) in new format, so as to cover the newly introduced coparcener's right also. By simply stating that the inheritance is under the H S Act and quantum of share is after reckoning a partition between such deceased person and the enumerated relatives including the daughter as coparcener, her share is enhanced as if she is a son. It is not correct to understand this sub-section as a source of right to claim partition. Sub-section (3) merely enacts deemed partition to fix share of the deceased in the coparcenary, in the light of the upgrading daughter also as a coparcener. Right to claim partition is clearly covered by su-sec.[2].

Summary of law as amended:

• From the above discussion what emerges is that, if there is in existence coparcenary property, the section 6 as newly substituted not only enables daughter to become coparcener by birth, but also enables her to claim partition as an incident of such right. As regards inheritance of a male coparcener's right in the coparcenary property, the share of such deceased person by way of deemed partition has to be calculated reckoning the daughter also as coparcener. The persons to inherit [‘devolution'] would be as mentioned in sec.8 of the Act.

Loser is mother:

• Incidentally, it may be noted that the law, while giving protection to daughter, has unwittingly made the mother, another female heir, of Madras & Mysore schools of Mitakshara Hindu Law where the mother does not get share in a family partition,[see foot note 9 supra], to sacrifice her interest in the property, which she would have inherited.
  
  To illustrate: Let us take it that a male F and his son S were the two coparceners in a joint family consisting of F, his wife, W, a daughter D and a son S. Previously F and S would have half share each. By upgrading D, now their share becomes 1/3rd each. If F died before the introduction of such law, under old sec.6, F had half share which devolved upon W, S and D equally, W would have got 1/3rd of half. That is, 1/6th. Now after upgrading of daughter, if F dies 1/3rd would devolve equally upon the three, thereby giving only 1/9th to W. This situation would remain same for mother, even if she gave birth to only a daughter because the daughter would be upgraded as a son and get higher right than the inheriting mother.
   
• The avowed object behind Law Commission recommending the conferment of coparcenary right to a daughter is thus stated in 174th Report:
  2.8. The retention of Mitakshara coparcenary without including females in it meant that females cannot inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership [merely by reason of their sex] not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of fundamental rights guaranteed by the Constitution.
  
  Inequity against another female is unwittingly brought about by the legislation, enacted in the name of avoiding inequity against female as mentioned above.
   
• It may be of some interest to note what the Parliamentary Standing Committee in its 7th report in para 2.16 stated on this aspect:
  As far as the basic objective of the Bill to remove gender discriminatory practices in the property laws of the Hindus, the Committee welcomes the amendment in section 6 of the Bill, whereby daughters have been given the status of coparceners in the Mitakshara joint family system.
  
  However, the Committee feels that the position of other Class I female heirs should not suffer as a result of this move. In this context, the Committee recommends that Government should examine this concern and make suitable provisions to ensure that no injustice is done to the other female heirs, especially the widows.[italics supplied for emphasis]
  Beyond this observation, no other solace to the mother who sacrificed for the sake of daughter![12]

What if there was State enactment on same field already in existence before 2005?

• With the State of Andhra Pradesh leading the way in 1989, there have been enactments in the States of Tamilnadu, Karnataka and Maharashtra, during subsequent years, conferring coparcenership on daughters in respect of joint family property. In all these enactments it was clearly stated that as on the date of the enactment if the daughter was unmarried, such daughter would get the benefits.[13]
   
• There is no much difference in the wordings of State Amendments and later Central law. The main difference is doing away with the classification of married and unmarried daughters. As between a Central Legislation and a State legislation in the same field, if there is any conflict, the Central legislation will prevail. The Central legislation does not distinguish between married and unmarried daughter to become coparcener. Therefore the Central enactment will remain in the field.[14]

How judiciary interpreted the law:

• In Sheela Devi case[15] the Supreme Court considered impact of Amendment of 2005 to find out if the daughter [that is sister of plaintiff] would get equal share or not. On facts it was found that the father, Babu Lal, had expired in 1989 and hence the Amendment Act would not be applicable. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. The Court pointed out that when Babu Lal died old section 6 operated. Daughter could not and did not get equal right in that case. She could get only such share as devolved from her father's half share to all the heirs equally.
   
• It may be noted that the Supreme Court had occasion to consider impact of Amendment Act of 2005 bringing about the omission of sec.23 of Hindu Succession Act relating to dwelling house. On the facts of that case, even though the father died in 1996 and succession had opened at that time, the property was self acquired property of the father and as such the Supreme Court held that the daughters could seek partition of dwelling house because in the Amendment of 2005, the bar of sec.23 had been removed during pendency of the suit for partition.
  
  The Amendment was applied on the ground that the bar under sec.23 was not a vested right.[16] However, after noticing that the vested right is not taken away the Court observed that [n]either the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place.
  
  Continuing, the Court observed thus regarding the Amendment of 2005:
   23. The operation of the said statute is no doubt prospective in nature. As regards impact of removal of sec.23 the Court observed thus: What should have been was that although it is not retrospective in nature, its application is prospective.[17]
   
• The principle stated in the aforesaid Sheela Devi case was applied by Division Bench of Karnataka High Court to a case[18] where the propositus died in 1991, having half share along with this son. The claim of daughters for equal right was not accepted because succession opened in 1991 and as such, the law as it then stood was applied.
   
• However, the Karnataka High Court in two of its rulings applied the amended law to the claim of daughters for partition, even though succession opened when old section 6 was in force, by holding that the Central enactment prevails over the previous State law which had excluded married daughters from coparcenary right.[19] It has been held that daughters born after coming into force of Hindu Succession Act on 17-06-1956 would be covered by the Amended provision irrespective marital status.
   
• Even in the case of Phulavathi v.Prakash, AIR 2011 Kar 78, the Amended law had been applied by Karnataka High Court to a case of inheritance prior to coming into force of Amended law. But this has been reversed in Supreme Court as mentioned below in this article.
   
• Orissa High Court had accepted the plea of equal right of daughters in a case where the property was held to be joint family property and the sons continued joint even though father died in 1991. The sisters were given same quantity of share like the brothers by applying the Amended law to the case of partition pending in appeal before the said High Court.[20]
   
• The Full Bench of Bombay High Court has held that the Amendment Act is retroactive and would enable even married daughter to claim partition in joint family property. All daughters living on the date of enforcement of Amendment Act would get the benefit is the view, differing from that of Karnataka High Court restricting to daughters born after the commencement of H S Act.[21]

Latest Rulings of the Supreme Court:

• In Gunduri Koteshshwaramma & Anr v. Chakiri Yanadi & anr,[22] the Supreme Court had to consider the impact of Amended sec.6 of H S Act to a claim of daughters as against their brothers. Facts disclose that the father was alive when the suit for partition was filed by the son. The father had 2 sons and 2 daughters. Father died in 1993 during pendency of the suit. During final decree proceeding the two daughters claimed for modified preliminary decree to give them higher quantum of share, same like that of the sons in the joint family property.
  
  Trial court had allowed it. But on appeal High Court had reversed it stating that after preliminary decree such alteration is not possible. Facts disclose that one of the brothers admitted the claim of the sisters. Only the plaintiff-brother disputed the said claim and he challenged it in High Court. The Supreme Court did not examine the effect of death of father before the coming into force of the Amendment of 2005.
  
  The Supreme 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.[at page 172, para 14]. On this basis the Court held that supplemental preliminary decree granting higher share to the daughters could be passed because the suit for partition would not come to end until passing a final decree. It may noted that in this decision the Court did not so much consider the pros and cons of applying the amended law.
  
  The High Court had reversed the trial court's order holding that the preliminary decree, which was not challenged by filing appeal, could not be altered by trial court during final decree proceeding. It looked as if during arguments before Supreme Court the applicability of law was taken for granted, though the concentration was on the question as to whether preliminary decree could be modified by the same court which passed the decree earlier.
   
• The aforesaid AIR 2011 Kar 78 decision was taken up in appeal to Supreme Court. The decision given by Supreme Court[23] is the next important ruling on this aspect of Amended law. Several cases involving similar question of law were taken up by Supreme Court to decide the question of retrospectivity of Amended law of 2005. The facts of the case disclose that the propositus-father had expired in 1988.
  
  The daughter of a deceased propositus-father filed suit for partition in respect of joint family property. She would be entitled to 1/28th share in father's share which devolved under the H S Act as it existed before the Amendment. As regards joint family property the daughter put forward higher right of 1/7th share as a coparcener by amending her claim basing on Amendment Act of 2005. The High court had upheld her claim by applying amended law. Aggrieved son filed appeal to Supreme Court.
  
  The argument of appellant before Supreme Court was that the father having died in 1988, the right of inheritance got crystallised when old section 6 was in force and as such the Amended law could not be applied so as to take away vested right. The Supreme Court held that the text of amended provision of law clearly indicated its prospective application. The phrase ‘on and from the commencement of Hindu Succession Act, 2005' gave such indication. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by legislature.
  
  The Court held that the daughter, living as on the date when Amendment Act came into force, would be entitled for coparcenary right irrespective of her past date of birth. The Supreme Court approved the reasoning of Karnataka High Court in the case of Prithviraj, ILR 2009 Kar 2612. The Supreme Court allowed the appeal and remanded the case for fresh disposal by High Court. In other words, granting coparcenary share to daughter in a case where the father died prior to Amendment of 2005 was not accepted.
   
• In another case[24], again arising from the judgement of Karnataka High Court, the Supreme Court reiterated the views expressed in Prakash v.Phulavathi Ruling. Daughter, having been upgraded as coparcener, has got right to seek partition as an incident of coparcenary right is what is also stated[25]. In this latest Ruling, though the Supreme Court had followed the principle laid down in Prakash v. Phulavathi Ruling, while finally granting the relief, the court granted equal share to the sons and daughters.
  
  The facts disclose that the succession opened in 2001 when the propositus-father, Gurulingappa Savadi, had expired, leaving behind wife, 2 sons and 2 daughters. Going by what was actually decided in Phulavathi Ruling, the Court ought to have held that the succession opened when old section 6 was in force and as such the daughters would not be entitled to claim share as coparceners. However in this case the Supreme Court granted equal share to the sons and daughters as seen from para 28 at page 730 of the law report.
   
• Incidentally it is submitted that the Karnataka High Court has struck down the Proviso of sec.6[1] of Amended Act on the ground that it is violative of Art.14 and 16 of the Constitution of India.[26]

Upshot of the Rulings and the provision itself is summarised:

In the light of the discussion made above the effect of section 6 as introduced may be summarised thus:

1. Concept of coparcenary of male is well settled and hence needed no mention of it, unlike old sec.6[1] which reiterated the rule of survivorship of coparceners. Therefore, under amended sec.6, the legislature has taken opportunity to upgrade a daughter as coparcener in regard to Hindu Mitakshara joint family. Once that is done sons and daughters would become equal partners in the coparcenary.
   
2. Such exercise is confined to conferring prospective right, because creating retrospectivity will result in more complications than what would happen by making it prospective. Thus under subsection [1] female coparcener is brought into existence in regard to a joint family of Mitakshara system ‘on and from the commencement of the Amendment Act', though by birth.
    
3. If there is no such joint family in existence with coparcenary property, section 6 itself will not be attracted. Inheritance under sec.8 relating to self acquired property has been equal between all heirs irrespective of sex.
    
4. Once coparcenership is conferred, its consequence of giving rights and liabilities is ensured by sub-section [2]. Incidents of coparcenership are conferred on the daughter. She becomes full-fledged coparcener. Hence female coparcener can seek partition during life time of father. If she turns out to be senior most of the family, she would be a karta also. That is one of the incidents of coparcenary.
    
5. In effect sub-sections [1] and [2] would clothe the daughter to assert like her brother with regard to joint family property. Whether she is married or not would not have relevance.
    
6. Sub-section [3] deals with situation of death of a coparcener. Under old sec.6, when death occurs, if coparcener has left behind female relatives of Class I, the rule of survivorship, which is the pristine law of coparcenership, would not apply for such inheritance. For devolution of rights, an imaginary partition was envisaged so as to fix the quantum of share to be inherited in such manner under the Act, vide the Explanation I of old sec.6. A provision similar to it should be put in place after introducing female coparcenership also.
   
   Hence sub-section [3] and its Explanation are provided. The deemed partition would ensure equal share to a daughter just as a son would get. The sub-section [3] is not meant to confer right to partition to a daughter. It is meant to ensure her equal right just as a son would get in the coparcenary, when inheritance takes place. Right to claim partition springs from sub-section [2] itself as an incident of coparcenership.
    
7. To protect the coparcenership from exposure to pious obligation and thereby defeat the right, sub-section [4] is enacted, which is meant to benefit both sexes of coparceners. However the very fact that it is operative from future date is also indicative of the fact that the right conferred on daughter is not retrospective.
    
8. Pre-existing partitions either by registered deed or by court partition and alienations, all prior to 20-12-2004[date of Bill] are saved. It is also another pointer to show that the right conferred is prospective.

How much share daughter would get is what it boils down to:

• In ultimate analysis, the existence of joint family property is crucial for invoking sec.6 by a daughter.
   
• For self acquired property, in view of sec.8, her right to inherit equally with the son right from inception of the Hindu Succession Act was already guaranteed, unlike pristine pure Mitakashara law, which did not recognise her as an heir even for self acquired property, because of application of coparcenary right so that it used to devolve by survivorship.
   
• Even as regards the coparcenary property, the scope of controversy is limited to the quantum of share. If she was not coparcener she would get smaller share from out of her father's coparcenary share. But after 2005 amendment, she too would get equal share like a son, both by birth and by inheritance, if the property is of the coparcenary.
   

What is the expectation in future:

• How far the concept of coparcenary property would be still available to enable a daughter to claim partition like a son? This should be examined in the light of another collateral principle evolved by Supreme Court since the 1980's. It is held that once succession takes place under proviso of old sec.6 [1] read with sec.8 and 19 of the H S Act regarding coparcenary property, whereby any female heir succeeds upon such inheritance, what remains in the hands of successors is not joint family property.
   
• Hindu Succession Act came into force from 17th June 1956. By the time the Amendment Act of 2005 came into force, little more than 48 years have elapsed. In a joint family governed by Mitakshara law of inheritance death would have definitely taken place, leaving at least one female heir of Class I, thereby attracting the proviso of sec.6[1] as it originally existed. In such an event by deemed partition the share of such deceased person would have devolved not only on male heirs, but also on female heir or heirs, thereby introducing sharers not contemplated by Mitakshara coparcenary.
   
• It is held by several rulings of the Supreme Court, including the latest one being a case from Madhya Pradesh,[27] [Uttam v. Saubhag Singh] that the concept of joint family property would not survive after the consequence of such inheritance. In view of this position of law, unless the same is reversed to hold that such effect did not take place and the coparcenary continued notwithstanding inheritance of property by female sharers by virtue of sec.8 of the Act, the daughter who is upgraded as coparcener would not be entitled to exercise such right because there is no coparcenary property in existence for her to take the benefit. In rare cases where no such consequence might have taken place during the long period of 48 years, the daughter would be lucky to use the law.
   
• In the above said ruling of Uttam v. Saubhag Singh, the following propositions have been laid down[28] after examining provisions of H S Act and the case law on the subject:-

The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:

1. When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
    
2. To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
    
3. A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
    
4. In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
    
5. On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
    
6. On a conjoint reading of Sections 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. [bold for emphasis]

 

• The facts of the said case are summarized thus at the end of the Ruling: Applying the law to the facts of this 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 the other coparceners, devolved by succession under Section 8 of the Act.
  
  This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.
   
• What happened to male coparcener would be equally good and applicable to female coparcener also, if situation of joint family is as explained above when Amendment came into force in 2005.

In the light of sec.6(3) of Amended Sec.6, if inheritance takes place under that section, read with sec.8 and 19, the daughter or son of female coparcener, who gets share declared by deemed partition, cannot claim to become coparceners because there would not remain a joint family property, on parity of reasoning of the above cited ruling.

# In the light of the above result, whether the Supreme Court should reconsider its view on impact of sec.6, 8 and 19 is for the future.

# In the commentary by Mulla on Hindu Law the view expressed was that the deemed disruption was only for the purpose of calculation of share devolving by inheritance and not for all other purposes because sec.4 overrides the traditional law only to the extent it is provided in the Act[29]. This view has to be restored by reversing the decision of Uttam v. Saubhag Singh and other rulings taking the same view, if female coparcener should really get the benefit of sec.6 as Amended.

End-Notes:

1. 16. Law administered by Courts to natives:
   Where, in any suit or proceeding, it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage, or caste, or any religious usage or institution-
   (a) the Muhammadan law in cases where the parties are Muhammadans and the Hindu law in cases where the parties are Hindus, or
   (b) any custom (if such there be ) having the force of law and governing the parties or property concerned, shall from the rule of decision unless such law or custom has, be legislative enactment, been altered or abolished.
   (c ) in cases where no specific rule exists, the Court shall act according to justice, equity and good conscience.
   [example - culled out from Madras Civil Courts Act of 1873, still in force].
2. Page 512, Mayne's Hindu Law & Usage, 12th Edition.
3. Ibid, pages 525, 526 & 527.
4. Ibid page 529.
5. Shyam Narayan Prasad v. Krishna Prasad & Ors., (2018) 7 SCC 646.
6. State Bank of India vs. Ghamandi Ram, AIR 1969 SC 1330, at pages 1333 & 1334.
7. Over-riding effect of Act. 4. (1) Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.[sub-sec[2] omitted w.e.f 9/9/05].
8. Class I: Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son 1 [son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].
9. Traditional mode of partition in Madras and Mysore area is without giving share to wife/mother; but in Bombay school of Mitakshara law, wife/mother would also get a share. This is a well established difference.
10. For an illustration of how this Explanation is worked out between father, son and 2 daughters, upon death of the father, see the decision of Supreme Court in the case of Anar Devi V. Parameshwari Devi AIR 2006 SC 3332.[para 12].
11. For example, a father/karta can sell entire property including interest of his coparcener-son; same liability daughter would suffer.
12. In Pushpalata vs. Padma, AIR 2010 Kar 124 at page 163 the High Court has observed that the mother has to make such sacrifice in favour of a daughter!
13. For an example the Karnataka section is quoted. Similar were the wordings of other State enactments also. "6-A. Equal rights to daughter in coparcenary property.- Notwithstanding anything contained in Section 6 of this Act: (a) in a Joint Hindu Family governed by 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, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son; (b) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be; (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by Will or other testamentary disposition; (d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990". Sec 6B provided for devolution of female-coparcener's right upon her death.
14. Sugalabai vs. Gundappa A Maradi & ors, ILR 2007 Kar 4790 and Pushpalatha v.Padma, AIR 2010 Kar 124, para 90.
15. Sheela Devi & ors vs. Lal Chand & anr, (2006) 7 SCC 581 at p.590, para 21.
16. G.Sekar v.Geetha, AIR 2009 SC 2649.
17. Ibid page 2654.
18. M.Prithviraj v. Neelamma, ILR 2009 Kar 3612.
19. See foot note 14 supra for reference of the two rulings. See also Hanumakka vs.Sharadamma, 2012 (3) K.L.J.1.
20. Pravat Chandra Pattnaik vs. Sarat Chandra Pattnaik, AIR 2008 Orissa 133.
21. Badrinarayan Shankar Bhandari vs.Omprakash Shankar Bhandari, AIR 2014 Bomb 151[FB].
22. AIR 2012 SC 168.
23. Prakash vPhulavathi, AIR 2016 SC 769.
24. Danamma v.Amar, AIR 2018 SC721
25. ibid, para 26 at page 730.
26. R.Kantha v. Union of India, 2009(6) AIR K R 218.
27. Uttam v. Saubhag Singh, AIR 2016 SC 1169.
28. ibid at pages1177 &1178.
29. Anar Devi V.Parameshwari Devi AIR 2006 SC 3332 at pages 3333 & 3334 where the passages are quoted.

Written By: M V Shanker Bhat, Advocate, B.A.B.L. Mangaluru