SECTION 6, AGAIN – BUT FOR A DIFFERENT REASON — By P. Valliappan, Advocate, Chennai Section 6 of the Hindu Succession Act, 1956, continues to flummox this author, notwithstanding
— By P. Valliappan, Advocate, Chennai
Section 6 of the Hindu Succession Act, 1956, continues to flummox this author, notwithstanding the catena of judgments and numerous Articles. The amendment of Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’) by virtue of Hindu Succession (Amendment) Act, 2005 (39 of 2005) (hereinafter referred to as ‘the Amendment Act’) and its interpretation, remains a constant topic for discussion, amongst the legal fraternity. Of course, there are many facets of the provision, which still lie in a grey area. One thing is clear; there can never be an exhaustive article on Section 6. Apart from the mandatory vacation presented by Covid-19, a perspicacious lawyer viz. Srinath Sridevan , spurred the author to take another shot at Section 6 of the Act. Nevertheless, the author’s obsession with Section 6 of the Act, continues.
ISSUE: This article primarily deals with the effect of Proviso to un-amended Section 6 of the Act and Explanation 2 appended thereto, and the impact of their exclusion in amended Section 6, brought out by Amendment Act, which came into effect from 09.09.2005.
PRE AMENDMENT SCENARIO:
LEGAL PROVISIONS (extracted because, it is expedient):
SECTION 6, PRIOR TO AMENDMENT:
Devolution of interest in Coparcenary property — When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara Coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the Coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him 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 the deceased in the Mitakshara Coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1 — For the purposes of this 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.
Explanation 2 — Nothing contained in the Proviso to this Section shall be construed as enabling a person who has separated himself from the Coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”
Section 8 – General Rules of Succession in the case of Males – The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter II:-
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Before proceeding further, it is better to understand the purport of Section 6, as it stood, prior to amendment. The provisions of Hindu Law can be better appreciated by illustrations. The following illustrations, albeit not exhaustive, would clearly demonstrate the implication of the Proviso and Explanation 2:
Illustration 1 – A Coparcenary consisted of father A, sons B & C and daughter D. If son C (having 1/3rd share) had separated earlier, he was precluded from claiming any share on the death of father A. The Proviso as well as Explanation 2, barred such a claim. On the death of father A, his 1/3rd share devolved on son B and daughter D, as per Section 8 of the Act.
Illustration 2 – A Coparcenary consisted of father A and three sons B, C & D. If son C (having 1/4th share) had separated earlier, on the intestacy of father A, sons B and D succeeded to the 1/4th share of father A, by survivorship. In this illustration, the Proviso was not attracted due to absence of Class I female heir and consequently, Explanation 2 did not apply.
Illustration 3 – A Coparcenary consisted of four brothers A, B, C & D and brother C (having 1/4th share) had separated earlier. On the intestacy of any of the remaining Coparceners viz. A or B or D, the property devolved on the surviving Coparceners. However, If any of the undivided Coparcener was survived by a Class I female heir, such heir succeeded in terms of Section 8 of the Act.
Illustration 4 – A Coparcenary consisted of father A, sons B, C & D. Son C (having 1/4th share) had separated earlier. Father A died leaving behind his wife and mother, as well. On the intestacy of father A, his widow, mother, sons B & D succeeded to the 1/4th share of father A, in terms of Section 8 of the Act.
Illustration 5 – A Coparcenary consisted of father A, sons B and C. Son C is separated. Father A died leaving behind his sons B & C and widow D. On father A’s death, his share in the Coparcenary property did not devolve by survivorship to C, since there was a female relative specified in Class I. It devolved by intestate succession. The two sons and the widow were heirs but Explanation 2 excluded the divided son C. Son B and widow of the deceased were each entitled to ½ share in the property left behind by father A.
Illustration 6 – A Coparcenary consisted of father A, sons B, C, D and daughter E. All the sons were separated. The Coparcenary came to an end, as it could not consist of a single individual. Consequently, the provisions of Section 6 of the Act, were not applicable. On father A’s death, his three sons and daughter succeeded to the property, as per Section 8 of the Act.
AN EXAMEN: The above illustrations make obvious that if there was any Class I female heir, the divided coparcener would be disqualified from claiming any share in view of Explanation 2. On the contrary, even if there was no Class I female heir, the divided coparcener was disentitled from claiming any share, due to continuance of Coparcenary, by survivorship. It is needless to mention that the legal heirs of the divided coparcener, were also not entitled to claim any share. This was the rationale behind the Proviso and Explanation 2 to Section 6 of the un-amended Act.
A perusal of un-amended Section 6 of the Act, made it abundantly clear that it did not bring about any major change in the law relating to succession amongst Hindus, as it existed prior to 1956. In a Coparcenary, share enlarges on the death of a coparcener and diminishes on the birth of a coparcener. On the death of a coparcener, his share devolved upon the surviving Coparceners. The concept of survivorship, which is the fulcrum of Coparcenary, was preserved.
The effect of the Proviso read with Explanation 1 thereto, was that when there was an heir of the nature specified in the Proviso, the share of the deceased coparcener had to be determined on the deemed fiction that a partition of the property had taken place immediately before his death, irrespective of the fact, whether the deceased coparcener was entitled to claim partition or not.
An exception was carved out by the Proviso, enabling Class I female heir(s) mentioned therein to succeed to the estate of the deceased coparcener, along with male heir(s) in the same Class. If the deceased had left behind him a female relative, specified in Class I of the Schedule or a male relative specified in that Class, who claimed through such female relative, the interest of the deceased in the Coparcenary property was to devolve by testamentary or intestate succession as the case may be, under the Act and not by survivorship. At this juncture, the provisions of Section 8 of the Act, had to be applied. In case of intestate succession, devolution of shares took place as per Section 8 of the Act. This change was brought about with a view to improve the status of Class I female heirs in respect of Coparcenary property. But if a coparcener had previously separated from the Coparcenary, he was disentitled to claim any share on the death of any of the remaining coparceners. Consequently, even a Class I female heir of such a separated coparcener was disentitled from claiming any share on the death of the remaining coparceners.
It is pertinent to mention here that a Class I female heir was not conferred the status of a coparcener, at that point in time. Hence the separated coparcener only implied a male. In essence, Explanation 2 postulated that a male, who was separated from the Coparcenary was not entitled to claim a share in the Coparcenary property, if there were Class I female heirs. In cases where there was no Class I female heir, the share of the deceased coparcener went to the surviving coparceners. In such cases, Section 8 of the Act, was not applicable. In other words, Explanation 2 precluded a person, who had separated himself from the Coparcenary, before the death of the deceased or any his heirs, to claim on such intestacy.
The fundamental principle behind Explanation 2 was that the surviving coparceners were to be preferred in the matter of intestate succession to a person, who had gone out of the family, after taking away his share. Explanation 2 was incorporated with a view to prevent the separated coparcener from seeking a share, again. The lawmakers felt that a coparcener having separated, should not be allowed to claim any further share. Hence by virtue of Explanation 2, the surviving coparceners were not liable to part with any share in favour of the divided coparcener, in cases where the Proviso was applicable. Explanation 2 applied, where the claim was made on intestacy of a coparcener, as it barred a divided coparcener from claiming along with undivided coparceners. Had it not been for Explanation 2, the divided coparcener could again stake a claim in the Coparcenary property.
In the case of death of a coparcener, without a female Class I heir, no question of a deemed partition arose and the rule of survivorship operated, unimpeded. If a coparcener had died leaving behind his mother, wife and daughters, all Class I heirs, the Proviso was applicable, on the assumption of a deemed partition, whereby share of the deceased in the Coparcenary was ascertained. This did not, however, translate into an actual partition between the family or affect the continuity of the Coparcenary amongst the remaining male members of the family. The share of the deceased, was assessed as per Section 8 of the Act. The effect of the deemed partition, was limited to ascertaining the share of the deceased, which was claimed by his Class I heirs. The Proviso was limited, in that although the share of the deceased was removed from the Coparcenary and vested as an absolute share in the female relatives, the remaining share of the Coparcenary property remained intact, in the same state, as it existed before. Explanation 2 provided that the divided coparcener, could not claim as an heir. Section 8 of the Act applied to every case of a Hindu dying intestate leaving no one, on whom the property could devolve by survivorship. As such, Explanation 2 did not prevent a separated coparcener from claiming right on intestacy of the surviving coparcener, if there was no person on whom the property could devolve by survivorship.
POST AMENDMENT SCENARIO:
SECTION 6, AFTER AMENDMENT:
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.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of Coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(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 —
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
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.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
(5) Nothing contained in this Section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation — For the purposes of this Section “ partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by the decree of a Court.”
The Amendment Act has replaced Section 6 in entirety and done away with both the Proviso and Explanation 2 appended to un-amended Section 6 of the Act. The following illustrations (facts analogous to pre amendment illustrations) will help understand the domain of amended Section 6 of the Act, in the context of this article and its deviation from the un-amended Section 6 of the Act:
Illustration 1 – A Coparcenary consists of father A, sons B & C and daughter D. If son C (having 1/4th share) had got separated earlier, he would not be disqualified from claiming any share on the death of father A. This is the direct consequence of removal of the Proviso as well as Explanation 2. On the death of father A, his 1/4th share will devolve on sons B & C and daughter D, as per Section 8 of the Act.
Illustration 2 – A Coparcenary consists of father A and three sons B, C & D. Even if son C (having 1/4th share) had separated earlier, on the intestacy of father A, all the sons B, C and D would succeed to the 1/4th share of father A, as per Section 8 of the Act.
Illustration 3 – A Coparcenary consists of four brothers A, B, C & D and brother C (having 1/4th share) had separated earlier. On the intestacy of any of the remaining Coparceners viz. A or B or D, C will not get any share, unless such brother dies intestate without leaving any Class 1 heir. However, if any of the undivided Coparcener(s) is survived by son/daughter/widow/mother, such heir(s) would succeed in terms of Section 8 of the Act.
Illustration 4 – A Coparcenary consists of father A, sons B, C & D. Let us assume that son C (having 1/4th share) had separated earlier and that the wife and mother of father A are alive. On the intestacy of father A, his widow, mother, all the sons B, C (divided son) & D will succeed to the 1/4th share of father A, in terms of Section 8 of the Act, each being entitled to 1/20th.
Illustration 5 – A Coparcenary consists of father A, sons B and C. Here also C is separated. Father A dies leaving behind sons B and C and widow D. On A’s death, his 1/3rd share would devolve by intestate succession on his two sons and widow, in terms of Section 8 of the Act.
Illustration 6 – A Coparcenary consists of father A, sons B, C, D and daughter E. All the sons are separated. The Coparcenary continues with father A and daughter E, each left with 1/5th share. However, on father A’s death, his divided sons along with undivided daughter E will succeed to his property, in terms of Section 8 of the Act. This illustration brings out the vital difference between the un-amended and amended Section 6 of the Act. Earlier, a daughter was not entitled to be part of a Coparcenary, but now, she is treated on par with a son.
ANALYSIS: It can be seen from the amended provisions of Section 6 of the Act, that a daughter is treated on par with the son, subject to certain conditions, like prior registered partition before 20-12-2004, death of father prior to 09-09-2005, etc. The status of a daughter, who could claim only as a Class I heir, under the pre-amendment period, improved to that of a coparcener. The interest of the deceased in Coparcenary property, is to devolve by testamentary or intestate succession, and not by survivorship. The daughter is allotted the same share, as is allotted to a son. The Proviso and Explanation 2, are conspicuous by their absence.
However, due to exclusion of the Proviso and Explanation 2 from Section 6 of the Act, it is possible for a separated son or daughter to claim right under Section 8 of the Act. Thus, the amended Act, on the one hand improves the status of the daughter and on the other hand allows, a coparcener, who had exited earlier, to claim the benefit under Section 8 of the Act. The improvement in the status of a daughter and the heirs mentioned in sub clauses (b) & (c) of Section 6 of the Act, appears to be the prime reason for the omission of the Proviso and Explanation 2. Thus, after coming into force of Amendment Act, 39 of 2005, there is no bar for a divided coparcener to stake a claim under Section 8 of the Act, despite his/her exit from the Coparcenary, earlier, as the daughter, being a Class I heir is promoted to the status of a coparcener. However, the status of the other Class I female heirs viz. mother and widow of the deceased coparcener, remains static. The Amendment Act does not in any way address the said issue. As stated supra, the status of the daughter and the right of a divided coparcener has improved.
CONCLUSION: In realism, this author is unable to see the existence of either the Coparcenary or its ‘Kartha’, as envisaged by ancient Hindu law. There are only nuclear families. Of course there still exists Coparcenary property. However, as intended by the Act, the concept of Coparcenary is fast becoming extinct. That day is not far away. As far as the un-amended Section 6 of the Act, is concerned, a separated coparcener was disentitled from claiming any share on the death of undivided coparcener or from the Coparcenary property, irrespective of whether there was a Class I female heir or not. The property of male Hindu dying intestate, was to devolve by survivorship upon the surviving members of the Coparcenary and in a case where the deceased coparcener left behind a Class I female heir, the property of the deceased coparcener was to devolve in terms of Section 8 of the Act. In either case, a separated coparcener, was kept away from claiming any interest on the intestacy of such deceased coparcener. The Proviso enabled the Class I female heir to claim and Explanation 2, barred the separated coparcener from making any claim under Section 8 of the Act. The Proviso and Explanation 2, presupposed the existence of a Coparcenary. When the Proviso was not attracted, automatically Explanation 2 became redundant. Thus, in cases where there was a Class I female heir, Explanation 2 was attracted. In cases, where there was no Class I female heir, Proviso itself was not applicable. While providing the benefit to Class I female heirs, the divided coparcener was deliberately prevented from making further claims, as he no longer contributed to the Coparcenary. After the amendment to Section 6 of the Act, a divided coparcener is entitled to seek a share on the intestacy of another coparcener, as per the provisions of Section 8 of the Act. The Proviso and Explanation 2, that existed prior to amendment, have been omitted. Since a daughter has been treated on par with a son, post Amendment Act, the lawmakers have felt that there is no need for the Proviso as well as Explanation 2, appended to it. Thus, the rights of the stakeholders will now have to be determined by applying the provisions of amended Section 6 of the Act, which in the opinion of the author, extends to even pending litigations. Since, the bar that existed prior to amendment, has ceased, a coparcener, who had separated prior to coming into force of Amendment Act, is also entitled to claim the benefit under the amended Act. Besides, the other Class I female heirs, viz. mother and widow of the deceased coparcener would be entitled to their share as per Section 8 of the Act. It has to be inferred that after the coming into force of Amendment Act, there is no bar for the divided son or divided daughter to claim a share, on the death of undivided coparcener, in terms of Section 8 of the Act. Eventually, the son and the daughter, both stand to gain, in different ways, due to coming into force of the Amendment Act.
