The Metamorphosis Of Right Of Hindu Women In Ancestral Property

-Roscoe Pound

The year 2005 saw tremendous change in the Hindu Succession Act, 1956. A change which was not only progressive but also imbibed the essence of right to equality as guaranteed in the Constitution. It provided for the right of a woman in ancestral property, treating her on par with her male counterpart for the very first time. The need to recognize the right of a woman in ancestral property was rejected at the very threshold when the Act was in its drafting stages. After almost 50 years from the inception of this Act, and after several rounds of parliamentary debates and discourses at various levels where the idea of bringing about this amendment on the touch stone of equality was mooted, it was finally enforced on 5^th September,2005 with the amendment of the HSA.

Since time immemorial the Hindu laws dealing with women's property rights have been discriminatory and a woman is always treated as subservient and less fortunate. The avowed objective of this progressive 2005, amendment is to eradicate the disdainful practice of discrimination which is purely on the ground of gender and to ameliorate the condition of women both socially and economically.

Sec. 6 of HSA re-defined

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.

A plain reading of the Act 39 of 2005 which brought forth the much awaited amendment in section 6 (Devolution of interest in coparcenary property) of the Hindu Succession Act makes it apparent that a daughter becomes a coparcener by birth in her own right in the same manner as that of the son. It is the very factum of birth in the coparcenary that creates coparcenary. Therefore, the daughter of a coparcener becomes a coparcener by virtue of 'birth' just like the son of the coparcener. This amendment also repealed section 23 of HSA which disentitled the female heir to ask for partition until the male chooses to divide their respective shares. Thus it clinches the issue beyond any pale of doubt that the daughter has an equal right in the ancestral property just like that of the son and gives her the same rights and liabilities in coparcenary property. However anomalies arose in the manner of interpretation with respect to the nature of applicability of this amendment.

In Prakash & Ors., Vs. Phulavathi & Ors., 2016 (2) SCC 36 the Court discussed at length about the applicability of the Act. The moot point in this case was whether the Act 39 of 2005 could be applied retrospectively. It was argued that the plain language of the statute unambiguously suggests that this right conferred on the daughter is "on and from the commencement of the HSA (Amendment), 2005". However, it was counter argued that amendment must be applied retrospectively as it is a piece of social legislation. But the Court laid down in clear terms that even a social legislation cannot be given retrospective effect unless so provided for or intended by the legislature. The Court further held that no other interpretation is possible in view of the express language of the statute. In conclusion the Court held that the amendment is applicable to living daughter of a living coparcener as on 05.09.2005 irrespective of when the daughter was born. Thus the raging controversy was momentarily buried after this authoritative pronouncement by the Apex Court where the Court had also concurred with the Full Bench of the Bombay High Court in Badrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari 2014 SCC Online Bom 908.

On the contrary the Supreme Court in Danamma Vs. Amar and ors., 2018(3) SCC 343 had gone on a different trajectory from its earlier judgment. The Court had taken a view that the very factum of birth confers coparcenaryship to sons and after the 2005 amendment to the daughters too and that the devolution of coparcenary property is at a later stage. Thus the Court explained that first stage is creation of coparcenary which then transcends into devolution upon death of a coparcener which is at a later stage. Thus the right of coparcenary emanates and flows from birth to both sons and daughters. The Court held that the right of the daughter got crystallized by virtue of the 2005 amendment; hence a share would devolve upon her. In the above case the daughter was given a share in ancestral property although the father died in the year 2001 which is quite contrary to the principles set out in Prakash & Ors., Vs. Phulavathi & Ors., Due to the apparent contradiction between the above referred cases, the matter now stands referred to a larger Bench in order to clarify the conundrum in the legal position.

Conclusion

Women's property and development rights must be part of any development agenda. Women's lack of property ownership is one of the most important contributors for women's low social status, poverty and violence against them. It is more attitudinal and the mindset that definitely needs an overhaul and amendment rather than a statute. Even if it legally belongs to them, it doesn't belong to them morally. Adding on to the patriarchal mindset is the lack of awareness about their rights under the statue which is seen as a bigger challenge. Our State was the indeed the 1^st in India to bring about such a reformist amendment as early as on 1989 (TN Act 1/1989) which is about 16 years before this amendment to the Central Act. One can only wish and hope that the Apex Court disentangles the incongruity between the above referred judgments thus streamlining and making it easier for advocates and litigants.

This back and forth and lack of clarity in the legislation defeats the purpose of the amendment in a lot of ways. Women have been oppressed for several centuries and a lot of legislations have been brought forth to ensure their progress and the protection of their rights. However, improper execution and conflicting interpretations do no good to the weaker sections of the society. It is highly imperative that the Executive and the Judiciary comes together in implementing the spirit of these legislations and ensure that equals are treated equally as envisioned in the Constitution.

Views Are Personal Only.

(Author is an Advocate practicing at the Madras High Court. The author may be reached at indupriya4231@gmail.com)