Hindu Succession, Then & Now

Hindu Succession Laws in India,

Then & Now

(A Research work by our Inter)

Introduction

Birthright is privilege, or possession to which a person is entitled to by birth. Who confers this right? Is it elders, society, culture, religion or law. Well if we read history of human civilisation, we won't be able to point at one single source above. Is the cumulative effect of all the sources above that confers a right of a child when he/she is born. A child when born is unaware of what sex, religiion, caste or creed it belongs to. So is it right to discriminate at its tender age and classify as to what it is entitled to and what not?

Our Ancient smritikars and shrutikars who acclaimed that they hear the ‘words of god’ propagated a view amongst their followers how a girl child and a boy child should be dealt with under Hindu Law. Nobody questioned the slow evolution their views that transformed into law. These laws took such deep roots that they became customs and traditions. Until one day it evolved into a term called ‘RIGHTS’. Who can now challenge these rights? This answer took centuries and decades when the real power to alter it was passed into hand of legislation, a codified legislation with equity, justice and good conscience.

The present assay is an attempt to study how Hindu Succession Act, remarked its journey of conferring rights from just sons to daughters also in Hindu Law without discriminationg, just like ‘Sanatan Text’.

In Ancient India, Hindus were governed by Shastric and Customary laws which varied from region to region. Communications and social interactions in the past were difficult then. This led to diversity in the law and order region wise and so did different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex.

Property can be self owned or joint family property that run down in the family generation to generations.

Succession means to acquire someone’s property either by way of his will, gift or inheritance. Succession is classified as

1) Testamentary succession - property will of a person.

2) Intestate succession - devolution of property left without will.

Any person so long as he is alive, is free to deal with his property in any way he likes. He, by making a Will, is free to lay down his own scheme of distribution of his property after his death. This is known as testamentary disposition. But if he dies without a will - Intestate - it is the purpose of the law of inheritance to determine the persons who will take his property.

Under uncodified Hindu Law, Earlier property was succeeded only by males as their birthright.

A woman in a joint Hindu family had only the right to maintenance and sustenance. In a patrilineal system of Hindu law, a woman was not given a birth right in the family property like a son.

As per the text of Baudhayana, women had no place in the Hindu scheme of inheritance and though by virtue of special texts specified female heirs were given the right to inherit, However, Females were devoid of powers and incompetent to inherit.

Why So?

A Hindu Joint family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. Hindu coparcenary is a much narrower body. It consists of propositus and three male lineal descendants. i.e 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.

If a coparcener dies, immediately on his death his interest devolves on the surviving coparceners. Thus ancestral property was governed male members of a joint Hindu family. They have an interest in the joint or coparcenary property by birth. Since a woman could not be a coparcener, she was not entitled to a share in the ancestral property by birth. And therefore she had no right in ancestral property.

Hindu Succession Act, 1956

After the advent of the Constitution, the first law pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956 (hereinafter called the HSA). This Act came into force on 17th June, 1956.

Section 6 of Hindu Succession Act, deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law.

The originally enacted provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property by a women. It provided the 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. 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.

Excluding the daughters from coparcenary ownership (merely by reason of their sex) contributed to discrimination against females but has led to oppression and negation of her fundamental rights guaranteed by the Constitution. Radical reforms were required so that there should be equal distribution of property not only with respect to the separate or self-acquired property of the deceased male but also with respect to his undivided interest in the coparcenary property. This will go a one way in eradicating the evils of the dowry system prevailing in our society and award a status of honour and dignity to a daughter at least in her family of birth.

State Amendment - The Hindu Succession (Maharashtra Amendment) Act, 1994

Part IV of the Constitution through the Directive Principles of State Policy further provides that the State shall endeavour to ensure equality between man and woman.

Five states in India, namely, Kerala, Kanataka, Tamil Nadu, Andhra Pradesh and Maharashtra were of view that the exclusion of daughters from participating in coparcenary ownership merely by reason of their sex was unjust.

Under Section 29-A added by the Amendment, the daughter of a coparcener shall by birth become a coparcener in her own right in a joint Hindu family governed by Mitakshara law, and shall have the same rights and be subject to the same liabilities as if she would have been a son.In the event of partition, she shall be allotted the same share as that of the son, and if she is dead at the time of partition, her children will be allotted her share. She shall hold such property with incidents of coparcenary ownership, and shall be entitled to dispose of it by will. A daughter married before 22-6-1994 (the date of operation of the Act) has been excluded from these benefits. Nor are partitions affected before 22-6-1994 to be reopened.

The Amendment has excluded the right of a daughter from the coparcenary property, who was married prior to the commencement of the amending Act. The reasons for excluding the married daughter stated that dowry might have been given at the time of marriage.

But there may be many cases where nothing has been given. Besides it wasn't a cogent reason for discriminating between a married and an unmarried daughter. Majority were of the view that all daughters must be treated equally, and at par with sons. By denying a married daughter equal rights in coparcenary property, a large number of females are getting left out of the benefit.

The Supreme Court decision in Savita Samvedi v. Union of India lends support to the view that a distinction between a married and an unmarried daughter will be unconstitutional.

The Hindu Succession (Amendment) Act, 2005

The Centre asked all the states to carry out suitable amendments in the HSA to confer property rights on women in a joint family. "The Department of Women and Child Development has requested various States and Union Territories to draw up necessary legislation proposals to amend section 6 of the HSA, 1956 to give daughters their due share of coparcenary rights as already done by States like Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu.

by Amendment Act, 2005,

The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of subsection (1) contains a non obstante clause providing that nothing contained in the sub­section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before commencement of the act.

Any property to which a female Hindu becomes entitled shall be held by her as owner of that property and such property shall be capable of being disposed of by her by testamentary disposition.

Where a Hindu dies after the commencement of Act, 2005, his interest in the property shall devolve by testamentary or intestate succession, and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- the daughter is allotted the same share as is allotted to a son;

The act added certain close cognates in the list of Class I heirs, viz; predeceased granddaughter’s children.

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 son’s pious obligation to pay his father’s debts has also been abolished by this amendment for debts after the commencement of the Act.

Effects of Amendments

● A woman can now acquire ‘Birth Right’ as a coparcener in Hindu Joint Family. And therefore is now entitled to the ancestral property as her ‘Birth Right’ of the Joint Hindu Family.

● She can now be karta of hindu joint family. As karta can alienate her property.

● She can now ‘will’ her property.

● Demand Partition of property.

● Her rights in her maiden family don’t dissolve even after her marriage.

● Her offspring are entitled to inherit property from her maiden Hindu Joint Family. She shared the responsibility and liabilities equally as like a son.

● There is equal distribution of property not only with respect to the separate or self-acquired property of the deceased male but also with respect to his undivided interest in the coparcenary property.

Further effects of Amendments can be clearly understood by the following recent judgement of the Supreme Court.

RECENT JUDGEMENT

On 11 August 2020, in Vineeta Sharma v. Rakesh Sharma the Supreme Court’s three-member bench of Justices Arun Mishra, S Abdul Nazeer and MR Shah sought to clarify the effect of retrospective implication of sec 6 of Hindu Succession Act.

The conflict was whether the daughter was a coparcener irrespective of whether her father was alive or dead before the date the 2005 amending act came into force.

In two citation there was a conflicting opinion,

There was a conflict in judgement In Prakash v. Phulavati (2016), a single-judge bench of the Supreme Court held that Section 6, did not apply retrospectively, and thus only applied to those cases where both the father and his daughter were alive on the 9th of September 2005, when the amendment came into effect.

whereas, in Dannama @ Suman Surpur v. Amar (2018), a division judge bench of the Supreme Court held that the amended section conferred full rights upon the daughter, who could claim her rights to the property in question despite her father having passed away in 2001 before the amendment came into force.

In the present case, The Delhi High Court held that the daughter was not a coparcener when her father passed away in December 1999, as the amendment of 2005 could not be applied retrospectively. The daughter then appealed to the Supreme Court on this matter, and the question was placed before the three-judge bench for final clarification.

Therefore the party appealed before the Supreme Court.

Court’s Ruling

The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities

The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with regards to disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

In view of the rigor of provisions of Explanation to 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 daughters cannot be deprived of their right of equality conferred upon them by Section 6. The Court overruled the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.

CONCLUSION

After the amendments, as the correct interpretation of hindu scripts, the women now enjoys the status of ‘Human’ rather than a ‘Chattel’.