Hindu succession Act (HSA) had often been criticized for neglecting to recognize women’s rights to ancestral property of joint hindu family. To remove this age-old discrimination legislature amended sec 6 of HAS (wef 9 Sept 2005) to enable hindu females claim their rights in their ancestral property which until now were exclusively enjoyed by males.
This amendment has been cause of resentment in various affected quarters of hindu society and has led to various litigations, two of which are discussed:
(a) Sujata Sharma v Manu Sharma (Del HC Dec 22, 2015 )
(b) Prakash v Phulvati (SC decided on Oct 15, 2015)
Sec 6 of HSA was amended in 2005 to permit to grant daughter of coparcenor same rights as coparcenor as held by male[1]. The daughter now (after 2005) possesses same right and liabilities as are enjoyed by son. However need has been felt to further clarify the nature and extent of these rights as coparcenory is an all-round concept which not only includes legal notions but also social notions. For ex whether a woman could act as Karta of Hindu Undivided Family? Kartaship not only includes right to manage property on behalf of HUF but also covers religious liabilities and consequently would 2005 amendment allow women to perform religious rites as well. Such questions need authoritative adjudication to be settled.
Before we move into opinions rendered above let's 1st dissect Sec 6 after 2005 amendment so far as it relates to women as coparcenors:
Sec 6(1) - # In a joint hindu family governed by Mitakshara law;
# daughter of coparcenor shall - [women claiming right should be a daughter of coparcenor i.e., coparcenory has to flow to her];
# by birth become a coparcenor in her own right in the same manner as the son- [her right to coparcenory is absolute and vested in her];
She will have same rights and subject to same liabilities of the coparcenory property as that of son- [She can be Karta but only in aspects related to coparcenor property and not for other socio-religious purposes]
Sec 6(2): She will be entitled to testamentary disposition (she can dispose property by will, sale etc) of the property owned under coparcenary
Sec 6(3): On death of coparcenor his (now includes her) interest in joint hindu family property shall devolve to successors by notional partition - daughter will have same share as son
It is through Sec 6(1) that coparacenory rights in joint hindu family property are granted to women by birth and subsequent to 2005 amendment a woman can claim partition of joint family property if the same as not be done uptil 20 Dec 2004 or if the partition was not written or registered. Further even unwritten/unregistered transfer of such property can be challenged if woman is entitled to rights in joint family property.
- In Mrs Sujata Sharma v Sh Manu Gupta the issue before the Delhi HC was whether plaintiff lady, being the 1st born amongst coparcenors of joint family property would by virtue of her birth, be entitled to be its Karta?
Court affirmed the position that if a male can be Karta as 1st born eldest of the family, so can be a female, even though it was argued that Sec 6 nowhere recognizes female’s right to become Karta. It was underlined that 2005 amendment simply brings a female member at par with male member with regard to rights in coparacenory property. Upon analaysing various sources the court reached to a progressive interpretation that a hindu female cannot be debarred from being a Karta and especially after she has been recognized as coparcenor by legislature through 2005 amendment
"Mulla: By virtue of the new provision, a daughter of a coparcener in a joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The implications of this fundamental change are wide. Since a daughter now stands on an equal footing with a son of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcenary property. Where under the old law, since a female could not act as karta of the joint family, as a result of the new provision, she could also become karta of the joint Hindu family"
Further the Law Commission’s 174th report argues: “when women are equal in all respects of modern day life, there is no reason why they should be deprived of the right and privilege of managing HUF as their Karta.”
- In Prakash & Ors v Phulavati & Ors a different issue on Sec 6 emerged before the Supreme Court. Herein the issue was as to whether 2005 amendment act to HSA would operate with retrospective effect?
The respondent lady herein was claiming equal part in ancestral property on par with her brothers as provided by 2005 amendment. However the appellant brothers plead that since their father died in 1988 before Sec 6 was amended, and hence she is not entitled to equal share as amendment cannot apply retrospectively.
It was with this issue that parties approached the HC which ruled that 2005 amendment would apply to present facts as proceedings pertaining to ancestral property were sub judice[1]
The appellants contend:
a) Father of respondent died in 1988 whereafter notional partition was done and through this operation of law appellants secured vested rights in property. Thus father of respondent not being coparcenor on date of commencement of 2005 amendment she cannot agitate equivalent share in property
b) Respondent cannot claim herself as ‘daughter of coparcenor’ which is the requirement under Sec 6 (1) after amendment
c) Since amendment was not applicable at all to her she is not entitled to share equal to that of appellants
SC states: “In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. ……On this finding, the view of the High Court cannot be sustained.”
Since the partition was done under law existing at that point of time, the effect would be that Sec 6(5) shall now come into force which prohibits any tinkering of partition[2] done before 20 Dec 2004.
It further says: “Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language. of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation.”
Consequently it was held: “rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.”
THUS
The above two cases though technically different, move in opposite directions as far as rights of female in joint family property is concerned. This is also because of the reason that legislature while amending sec 6 carefully inserted 20th dec 2004 as a date which would act as shield for already executed partitions or testamentary dispositions, so that any situation of chaos is prevented as females taking legal recourses to open up all existing arrangements. Nonetheless, sec 6 has served its social objective and ensured equality for hindu females in testamentary matters
[1] The Statement and Objects to HAS amendment act 2005 states: “Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcener. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindi Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1976.
3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession act, 1956 by giving equal rights to daughters in the Hindu Mitakashara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.”
[2] “The law in this regard is too well settled in terms of the judgment of the Supreme Court in the case of G. Sekar Vs. Geetha and others reported in (2009) 6 SCC 99. Any development of law inevitably applies to a pending proceeding and in fact it is not even to be taken as a retrospective applicability of the law but only the law as it stands on the day being made applicable.
[3] Their would be burden of proof on party which opts to challenge such prior existing partition.
[3] Their would be burden of proof on party which opts to challenge such prior existing partition.
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