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Injustice To Daughters In Hindu Shastric Law Done Away With: SC Explains The Impact Of Hindu Succession (Amendment) Act 2005 [Read Judgment]

Ashok Kini
12 Aug 2020 3:32 AM GMT
Injustice To Daughters In Hindu Shastric Law Done Away With: SC Explains The Impact Of Hindu Succession (Amendment) Act 2005 [Read Judgment]
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In its landmark judgment recognizing the equal rights of daughters in coparcenary property, the Supreme Court has explained the law regarding devolution of coparcenary property and also the impact of 2005 amendment to Hindu Succession Act on daughters' right to it.

The bench comprising Justices Arun Mishra, S. Abdul Nazeer and MR Shah, observed that the classic Shastric Hindu law excluded the daughter from being coparcener, and this injustice has been done away with by the 2005 Amendment of the Hindu Succession Act in consonance with the spirit of the Constitution.

Justice Mishra who authored the 121 page judgment, begins the discussion with original Hindu Succession Laws and later proceeds by explaining the basic concepts like Joint Hindu Family system, Coparcenary and Coparcenary property.

(The following are the relevant excerpts from the judgment.)

Two Schools of Hindu Law

There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, Bombay school, in Western India. However, certain areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri systems of law

Joint Hindu Family

A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation.

Hindu Coparcenary Before 2005 Amendment

Before 2005, it included only those persons like sons, grandsons, and great grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great-grandson, and E is a great great-grandson. The coparcenary will be formed up to D, i.e., great grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and great grandsons become coparceners by birth, they acquired an interest in the property.

Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member.

Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded.

Unobstructed and obstructed heritage

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

After discussing these basic concepts of Mitakshara law, the Court proceeds to discuss the Hindu Succession Act, 1956

Devolution of Interest In Coparcenary property [Pre 2005 amendment]

Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. Section 6 excluded the rule of succession concerning Mitakshara coparcenary property. As per the said provision, interest of a coparcener male Hindu who died after the commencement of Act of 1956, shall be governed by survivorship upon the surviving members of the coparcenary.

The exception was provided that if the deceased had left 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 such coparcener shall devolve by testamentary or intestate succession, as the case may be, in order to ascertain the share of deceased coparcener, the partition has to be deemed before his death. Explanation 2 disentitled the separated person to make any claim in case of intestate succession. Though the widow or daughter could claim a share, being a Class I heir in the property left by the deceased coparcener, and a widow was entitled, having a right to claim a share in the event of partition, the daughter was not treated as a coparcener.

Several State Amended 1956 Act to extend equal rights to daughters in Hindu Mitakshara coparcenary property

In several States viz., Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, the State Amendments in the Act of 1956 were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In­ the State of Andhra Pradesh, the amendment was made, w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975.

Sea of Changes brought in by 2005 Amendment

Made daughter by birth a coparcener "in her own right"

The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.

In case of death of a coparcener after 9.9.2005, succession is not by survivorship

With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of pre­deceased daughter or son are given a share in case child has also died then surviving child of such pre­deceased child of a pre­deceased son or pre­deceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea­change in substituted section 6. In case of death of a coparcener after 9.9.2005, succession is not by survivorship but in accordance with section 6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally enacted.

Makes a daughter liable in the same manner as that of a son

Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, grand­daughter, or great granddaughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.

Saves Partition Effected Before 20.12.2004

The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004. However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of 'partition' in the Explanation.

Having noted the changes brought in by the 2005 amendment, the Court proceeded to answer the legal issue that have arisen in these cases.

The issue in controversy was whether it is necessary that the father of the daughter should be living as on the date of the amendment for the latter to claim the benefit of the 2005 amendment.

The issue arose in view of the conflicting views expressed by two earlier decisions. In Prakash v. Phulavati, it was held that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. In Danamma, though the father died before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow, it was held that the daughter would get the equal share.

Disagreeing with the observation in Prakash vs. Phulavati, the bench observed that it is not necessary that the father of the daughter should be living as on the date of the amendment for the latter to claim the benefit of the 2005 amendment. It reasoned this holding by making the following observations.

Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughters born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case a living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

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

Disagreeing with the contrary observations made in Phulavati, the court said:

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

Statutory fiction of partition not bring about the disruption of the joint family or that of coparcenary

The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

When the proviso to unamended section 6 of the Act of 1956 came into operation and the share of the deceased coparcener was required to be ascertained, a deemed partition was assumed in the lifetime of the deceased immediately before his death. Such a concept of notional partition was employed so as to give effect to Explanation to section 6. The fiction of notional partition was meant for an aforesaid specific purpose. It was not to bring about the real partition. Neither did it affect the severance of interest nor demarcated the interest of surviving coparceners or of the other family members, if any, entitled to a share in the event of partition but could not have claimed it. The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended beyond.

Difference between Prospective, Retrospective and Retroactive

Though the court made the following observation about the difference between the terms Prospective, Retrospective and Retroactive , it did not actually return a specific finding as to the nature of the 2005 amendment.

"The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act. (Darshan Singh etc. v. Ram Pal Singh & Anr., (1992 Supp. (1) SCC 191 referred to)." 

A plea of partition based on oral evidence alone cannot be accepted for the purpose of Section 6(5)

The court also held that for the purposes of Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.

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

"The expression used in Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation."



Case no.: CIVIL APPEAL NO. DIARY NO.32601 OF 2018 
Coram: Justices Arun Mishra, S. Abdul Nazeer and MR Shah


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