Retrospective effect of Hindu women’s right as a coparcener

Hindu women’s right to property is a topic which has attracted a lot of discussion and debate especially after the introduction of the Hindu Succession (Amendment) Act, 2005 (‘2005 Amendment’). Prior to the Hindu Succession Act, 1956 (‘the Act’), the personal law of Hindus was uncodified. The Act, which was enacted on June 17, 1956, codified the personal laws of Hindus as regards intestate succession.

However, the Act does not define several important terms used in context of Hindu Law, such as ‘Joint Family’, ‘Self Acquired Property’, ‘Ancestral Property’, ‘Coparcener’, ‘Karta’, etc. In fact, the Act does not even per-se define the term ‘Hindu’ but only states an inclusive definition for the purpose of scope of the statute. The definitions/explanation of these terms can be found in various commentaries on Hindu Law. Due to the popularity of this law, both in codified as well as uncodified forms, the above mentioned terms/concepts do not seem alien to us. However, due to non explanation of these terms in the Act, there appears to be a lot of confusion regarding them and often the terms such as ‘Ancestral Property’ and ‘Joint family Property’; and ‘Joint Family’ and ‘Hindu Undivided Family’ are used interchangeably.

Defining key terminologies

For the purpose of understanding the concept, let us try to understand the meanings of the following terms:

• Joint family means a family wherein the father, his sons (married or unmarried), if married, along with their wife and children and unmarried daughters are residing together under a common roof.
• Coparcener prior to the 2005 Amendment meant any male member of a family. Any male, due to his very birth in the family, would become a coparcener. However, after the 2005 Amendment, the status of coparcener was granted even to daughters. As on date, all persons born in a family, whether male or female, are coparceners: by extension, a son-in-law or a daughter-in-law is not a coparcener.
• Self acquired property means property acquired by a person during his lifetime out of his income/savings. E.g. If Mr. A purchases a land during his lifetime from and out of his personal income, then the said land becomes the self acquired property of Mr. A.
• Ancestral property in relation to a Hindu means a property acquired by his father, father’s father (paternal grandfather) or father’s father’s father (paternal great-grandfather) which has not been alienated or divided. Upto three generations, the properties acquired by the father, father’s father or the father’s father’s father may remain as ancestral properties.
• Joint family property means all the properties acquired by a family out of the profits made from or sale of ancestral properties including any self acquired property of a member of the family that is thrown into the common stock or hotchpot of the family. As the term suggests, the properties are held jointly by all the members of the family and yet no member has the sole and absolute right to alienate the property unless the other members of the family consent to the same.

Position prior and subsequent to the 2005 Amendment

Even prior to the 2005 Amendment, the Act provided Hindu women the right to hold, enjoy and deal with properties acquired by them through any means either before or after the commencement of the Act. Further, Hindu women had the right to seek a share in the self acquired property of the father (property acquired by a person during his lifetime out of his income/savings) subsequent to his death, provided he died intestate, as she would be a Class I heir to her father as specified in Schedule I of the Act.

A bare perusal of Sections 14, 15 and 16 of the Act provides great clarity regarding Hindu women’s right to hold and dispose of properties inherited by her through her father, mother, husband, father-in-law or any person, in any manner –

• Section 14 – empowers a woman to be the absolute owner of the properties acquired by her either before or after the commencement of the Act.
• Section 15 – refers to the rule of succession in case of a Hindu woman
• Section 16 – provides the order of succession in respect of the heirs of the female deceased.

Sections 14 to 16 are pari materia with Sections 8 to 10 of the Act which apply to Hindu men. This comparison is made only to show that the Act grants similar rights to both men and women.

The only right that was not available to Hindu women under the Act was the right to claim a share in the joint family property or ancestral property as a coparcener until the enforcement of the 2005 Amendment on September, 2005.

Dichotomy

Section 6(1) of the Act reads as follows –

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, –

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 the daughter of a Coparcener:

PROVIDED  that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20^th day of December, 2004.

A plain reading of the Section makes it clear that the daughter is entitled to make a claim on the ancestral property and shall be granted a share in the property in the same way it would be granted to a son. However, no claim can be made in respect of alienations made through any registered partitions or testamentary dispositions (wills) prior to December 20, 2004.  The said proviso is included for the simple reason that, as per the rules of interpretation of statutes, no amendment can be made applicable retrospectively unless expressly provided so.

Let us examine Section 6(3) of the Act, which is extracted below –

(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,-

1. the daughter is allotted the same share as is allowed to a son; …

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.

The opening lines of Section 6(3) of the Act read, “Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005…”. Thus, as per Section 6(3) of the Act, for a Hindu woman to be entitled to claim partition in the ancestral property, her father should have been alive as on September 9, 2005 (the date when the 2005 Amendment was enforced).

A plain reading of Sections 6(1) and 6(3) of the Act create a dichotomy. What is granted unconditionally to a daughter in Section 6(1) is taken away by Section 6(3), making the right applicable only to those daughters whose fathers were alive as on September 9, 2005.

The Amendment Act gave way for several litigations regarding partition of ancestral properties and joint family properties. The judgments of the trial courts resulted in appeals to the High Courts and later to the Supreme Court; thus, one can find numerous judgments where Section 6 of the Act has been interpreted in various ways.

Recent Judgments

In 2016, the Supreme Court in Prakash v. Phulavati, (2016) 2 SCC 36 held that only living daughters of living coparceners (fathers) as on September 9, 2005 are entitled to seek for partition of the ancestral property. With due respect, the authoress opines that the view held by the Supreme Court in this judgment seems flawed and has created unnecessary confusion. Although the reasoning and explanation provided in the judgment are accurate, one may find that the conclusion made therein is completely contrary to the reasoning made in the judgment.

As per rules of interpretation, when two provisions create conflict, the interpretation which is more reasonable/beneficial should be adopted. Although the Supreme Court has interpreted Sections 6(1) and 6(3) of the Act properly, a strict interpretation of both provisions would lead to an anomaly.

Thereafter, in February, 2018 the Supreme Court in Danamma v. Amar, (2018) 3 SCC 343held that a woman, by the very factum of her birth in the family, becomes a coparcener and is entitled to seek a share in the ancestral property and whether the woman was born before or after the 2005 Amendment is irrelevant. The finding given by the Apex Court in Danamma’s case seems to be accurate and its reasoning and finding are more reasonable.

Although the Supreme Court held a different view in Danamma’s case, it neither expressly overruled nor dissented from the view taken in Prakash case. In another judgment in April, 2018 in Mangammal v. T.B. Raju, (2018) SCC OnLine SC 422, the Supreme Court, while discussing the Hindu Succession (Tamil Nadu Amendment) Act, 1989, (pari materia with Section 6 of the Amendment Act, 2005), reiterated the findings given in Prakash case and also distinguished the view taken in Danamma case. 

Law, as it stands today

The present position of law is a Hindu woman, irrespective of her date of birth, becomes a coparcener and consequently would be entitled to a share in the coparcenary property of her father’s family, subject to Section 6(5), provided both the daughter and her father were alive as on September 9, 2005.

As discussed above, the provisions and the latest judgments have granted the right to Hindu women in respect of their father’s family property, subject to unreasonable restrictions. The restrictions so imposed do not have the backing of logic or reasonableness and have created great confusion. The authoress opines that effective measures ought to be taken by the Legislature to put the controversy to rest so that Hindu women irrespective of their date of birth or death and irrespective of their father’s date of birth or death ought to be granted the status of coparcener and the ensuing rights.

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.