TIME TO REDEFINE SECTIONS 6, 14 & 15 OF THE HINDU SUCCESSION ACT by P.Valliappan, Advocate, Chennai (email – valliappanadvocate@gmail.com) PROLOGUE TO THE WRITE-UP 1.1 The incessant lockdown from 25.03.2020 and a series of webinars in Hindu Law provided yet
by P.Valliappan, Advocate, Chennai
(email – valliappanadvocate@gmail.com)
PROLOGUE TO THE WRITE-UP
1.1 The incessant lockdown from 25.03.2020 and a series of webinars in Hindu Law provided yet another opportunity to the author to mull over a few grey areas in the Hindu Succession Act, 1956 (for concision, referred to as ‘the Act’), post the amendments introduced by Hindu Succession (Amendment) Act, 39 of 2005 (briefly, referred to as ‘the Amendment Act’). Ultimately, this cogitation impelled the author to explore Sections 4, 6, 8, 14 & 15 of the Act in general and Sections 6, 14 & 15 of the Act in particular. The author is of the firm belief that the law relating to intestate succession in respect of the properties inherited by female Hindus in their capacity as ‘coparceners’ is equivocal, due to lack of clarity in Sections 6 (amended), 14 & 15 of the Act. Such vagueness in interpretation of statutes needs to be sorted out at the earliest, so as to quell long-drawn-out litigations. It is the fervent wish of the author that suits for partition and other suits/proceedings relating to the applicability of the provisions of the Act, should not be protracted due to the complexity in interpreting the legal provisions.
1.2 At the outset, the author requests that this write-up may be treated as a continuation of his earlier Articles reported in the Journal Sections of 2013 (3) CTC 205, 2013 (5) CTC 111, 2015 (5) CTC 94, 2016 (2) CTC 123 and 2020 (2) CTC 108. This appeal is made with a view to avoid repetition of the issues, already elaborated upon. Despite his best efforts to avoid replication, the author had to recapitulate a few statutory provisions of the Act and rehash the basic tenets of Hindu law.
RULES OF INHERITANCE – A PROLEGOMENON
2.1 In primordial times, the right to property amongst the Hindus was based on traditions and spiritual beliefs. The rules of inheritance were the creation of ancient Hindu jurisprudence. A joint Hindu family consists of all persons in lineal descent from a common ancestor, including their wives and unmarried daughters. In simple terms, a joint Hindu family is a group of relatives, who having descended from a common ancestor, are tied together by kinship and marriage.
2.2 A Coparcenary is a narrower body comprised within the joint Hindu family, consisting of those males, who take an interest by birth. It is limited to those males in unbroken lineage, who are not removed by more than three degrees from the common ancestor. A Hindu male along with his sons, grandsons and great-grandsons can form a Coparcenary. A coparcener has no definite share in the Coparcenary property but only an undivided interest in it. Such undivided share enlarges by deaths and diminishes by births in the family. By reason of his birth, a member acquires interest in unobstructed heritage. In case of unobstructed heritage, accrual of right is not obstructed by the existence of the owner. Obstructed heritage refers to the property in which right accrues not by birth, but on the death of the last owner, without leaving a male issue. Thus, unobstructed heritage devolves by survivorship and obstructed heritage descends by succession.
2.3 One of the deep-seated doctrines of ancient Hindu law is that a son is the forefather reborn. Every son is identified in interest with his father and all the sons together with him, constitute one body. Every one of these descendants is entitled to offer ‘Pinda’ (Rice-ball) to the common ancestor and every one of them obtains by birth an interest in the property of the ancestor. The Coparcenary is limited for the reason that it is only descendants up to three degrees, who could offer spiritual ministration to the ancestor.
2.4 The process of inheritance to Coparcenary property amongst the Hindus was altered by the passing of the Hindu Law of Inheritance, 1929, which was the first legislation that dealt with inheritance amongst the Hindus. Thereafter, the Women’s Right to Property Act, 1937 was introduced and it was supplanted by the Hindu Succession Act, 1956. Subsequently, the Hindu Succession (Amendment) Act, 2005 was passed.
2.5 The Amendment Act brought changes to Sections 4, 6 & 30, apart from omitting Sections 23 & 24 of the Act. Sub-section (2) to Section 4 was omitted by the Amendment Act. Section 6 was substituted by new Section 6 and Section 30 was amended to include the words “disposed of by him or by her” instead of the words “disposed of by him”. Class I of the Schedule was also amended, so as to include “son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son”.
2.6 Section 4 speaks about the overriding effect of the Act. Section 8 is easily one of the least complicated provisions, postulating the mode of intestate succession in respect of Hindu males. There is no controversy whatsoever, regarding its interpretation.
2.7 Amended Section 6 of the Act has been an apple of discord, ever since it came into effect on 09.09.2005. It has turned out to be one of the most intricate provisions of law and for this reason, made great fodder for the lawyers. There is a view that amended Section 6 of the Act is ill-drafted. The author does not consider such accusation as unreasonable, given the fact that interpretation of amended Section 6 has caused quite a kerfuffle.
THE DIVISIVE ISSUES:
a) The upshot of treating females as coparceners;
b) The rights of daughters who benefit under the amended Section 6 vis-à-vis the rights of coparceners, who had sought partition, prior to coming into force of the Amendment Act and the applicability of the Amendment Act to pending litigations.
THE STATUTE:
Sections 4, 6, 8, 14 & 15 of the Act and the Schedule (pursuant to amendment), which are germane to the purposes of this write-up, are extracted for trouble-free reading:
Section 4. Over-riding effect of Act —
(1) Save as otherwise expressly provided in this Act,—
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
Section 6. 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.”
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—
(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.
Section 14. Property of a female Hindu to be her absolute property —
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation —In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
Section 15. General rules of succession in the case of female Hindus—
(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 —
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1) —
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
THE SCHEDULE
CLASS I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son 1 [son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].
CLASS II
I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation ―In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.
EXPLICATION ON DIVISIVE FACTOR (a):
5.1 In the opinion of the author, even though the objective of the legislature to remove gender discrimination in respect of inheritance and succession amongst Hindus is noteworthy and commendable, the amendments brought about by the Amendment Act have caused perplexity in their interpretation and run counter to the essence of ancient Hindu law. At this juncture, the author extracts a part from one of his previous articles, which is as follows:
“The concept of Coparcenary is the product of ancient Hindu jurisprudence which later on became the essential feature of Hindu law in general and Mitakshara School of Hindu law in particular. As per Hindu custom, every Hindu used to pray for a son. The Sanskrit word for son is “Puthra”. Those who die without a son were believed to go to the hell and he who saves one from this hell is called ‘Puthra’. ‘Puth’ is the name of a particular hell, and ‘thra’ means “to protect”. Thus the word ‘Puthra” means “a person who saves one from the hell named ‘Puth’. Although a father’s share in the Coparcenary property will diminish after a son is born, he still prays for a son. It is axiomatic under Hindu law, that membership with the family should be considered as commencing from the time of conception. The moment a son is born, he gets a share in the father’s property and becomes part of the Coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. A son begotten but not born is equal in all respects to a son actually in existence except for the purpose of adoption. He is entitled to even sue for reopening a partition decree passed after his conception though it was before his birth. The after-born son is entitled to the protection of his property rights which he is held to have acquired from the moment he was conceived by his mother by the application of the fiction that he should be deemed to have been in existence from that time. The rights of daughters were safeguarded, inasmuch as, on getting married, they will move to another family, where their husband would have a right in the Coparcenary property. In a way, this encouraged the Hindu daughters to get married. But this method of inheritance to Coparcenary property amongst the Hindus was diluted by the passing of the Hindu Succession Act, 1956, followed by various state amendments and ultimately the Central Amendment Act, 39 of 2005”
5.2 In ancient Hindu law, a daughter was never considered subservient to a Hindu son. In fact, all Hindu females’ viz. mother, sister, wife and daughter, etc., were equated with Goddesses. The Hindu daughter was considered more precious than mere property. The daughters were seldom treated as chattels, as wrongly understood by some. The ancient Hindu rule of succession was by no means intended to discriminate or mistreat women. It has to be remembered that there is an essential distinction between discrimination and exploitation. The “so-called codification” of ancient Hindu law by virtue of various enactments has completely destroyed the essence of Hindu beliefs and customs, apart from eliminating joint families and undermining Coparcenaries. It is hard to find Coparcenaries these days. The successive enactments have done more harm than good. The impact of the enactments has been apocalyptic to the core of Hinduism. However, it is too late in the day to feel disconcerted over the same, as one’s mind can become fixated, ruminating over the past. What has happened cannot be undone and it is better to move on.
5.3 As per amended Section 6 of the Act, the ‘daughter of a coparcener’ by birth becomes a coparcener in her own right, in the same manner as the son. The Section further provides that any property to which a female Hindu becomes entitled to by virtue of the provision, shall be held by her with the incidents of Coparcenary ownership and shall be regarded as property capable of being disposed of by her by testamentary disposition.
5.4 In one of his previous articles, the author had dealt with the rights of a daughter, pursuant to amendment of Section 6 of the Act and the divergence of opinion expressed by various Courts. The author had opined that as per amended Section 6 of the Act, a Hindu daughter is entitled to the benefit of the amended provision, if she satisfies two tests viz. (a) that her father was alive as on 09.09.2005, so that the Coparcenery was kept intact, with no devolution of interest having taken place and (b) that there was no disposition or alienation including a partition (through Court or by registered instrument) or testamentary disposition prior to 20.12.2004.
5.5 Sub-section (1) of amended Section 6 improves the status of a daughter to a coparcener. Sub-section (2) postulates that the property acquired by operation of sub-section (1) shall have the incidents of Coparcenary ownership. But sub-section (3) stipulates that the interest of a Hindu in a ‘Joint Hindu Family’ (later referred to as ‘Coparcenary’ – the author considers the allusion to ‘Joint Hindu Family’ to mean a ‘Coparcenary’) shall devolve by testamentary or intestate succession and not by survivorship. A combined reading of sub-sections (2) & (3) of amended Section 6 would suggest that the property acquired by a female Hindu in terms of sub-section (1) would have the incidents of Coparcenary ownership and on the death of the female Hindu, her interest in the property of a Joint Hindu family, shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship, and that the Coparcenary property shall be deemed to have been divided as if a partition had taken place. It can be seen that though the property acquired by a female Hindu as coparcener is to be held by her with the incidents of ‘Coparcenary ownership’, it is to devolve by testamentary or intestate succession. The quiddity of unamended Section 6 was survivorship, except when there were Class I female heirs. But as per amended Section 6, irrespective of whether there are Class I female heirs or not, testamentary or intestate Succession is bound to happen on the death of a coparcenar. This read along with the words “not by survivorship” implies a clear departure from the provisions of the unamended Section 6.
5.6 It has to be noted that Sections 8, 14 & 15 have not undergone any change since the coming into force of the Act on 17.06.1956. The lawmakers after amending Section 6 of the Act, with a view to improve the status of a daughter, have not brought in corresponding changes to Sections 14 & 15 of the Act. For a male coparcener, the intestate succession will take place in terms of Section 8 of the Act. However, for a female coparcener, there is ambiguity regarding the mode of intestate succession. This is because Section 8 of the Act was imported when the son alone was considered a coparcener. As such, a provision equivalent to Section 8 or the very same mode of succession suggested by Section 8 ought to have been made applicable to Hindu females, who could attain the status of a coparcener.
5.7 Section 14 of the Act mandates that the property ‘possessed’ by a female Hindu be her absolute property and the Explanation describes ‘property’ to include both movable and immovable, acquired in any manner whatsoever, excepting those clarified by sub-section (2). Section 15 of the Act prescribes the mode of intestate succession in the case of female Hindus. The ‘property’ described in Section 15 clearly implies the one described under Section 14. Both provisions, which are untouched by the Amendment Act, do not refer to Coparcenary property, as the daughter was not a coparcener, when Sections 14 & 15 were introduced in the year 1956. It is apposite to mention here that Sections 14 & 15 were made applicable to all kinds of females viz. widows, mothers, daughters, etc. It never contemplated a ‘coparcener’ daughter or female. Besides, there is a categorical differentiation in the classes of heirs delineated in Sections 8 & 15.
5.8 If the daughter’s status is to be equated with that of a son, the consequences will have to necessarily follow. There cannot be one rule of succession for the son and a different one for the daughter of a coparcener, as it would be rather unfathomable. It is also far-fetched to conclude that the property described under Section 14 can be interpreted to include the property acquired by a female Hindu in terms of amended Section 6. Thus, intestate succession to the property of a female Hindu coparcener cannot be in terms of Section 15 of the Act, as the purport of Section 15 is very different. The effect of applying Section 15 in the case of intestacy of Hindu females will be felt the most, when she does not have issues. This brings to the fore the necessity for a provision analogous to Section 8. Once a Hindu female becomes a coparcener, her property ought to devolve as per the provisions, comparable to Section 8, which was in existence, when the provisions of unamended Section 6 of the Act were in force. For instance, if the provisions of Section 8 are imported to determine the heirs entitled to succeed to the property inherited by a female Hindu under amended Section 6, one essential alteration that may have to be made in Class I is to insert the word ‘widower’, in place of the word ‘widow’.
5.9 As expressed supra, the method of succession suggested in Section 15 of the Act cannot be extended, as it will run counter to the rationale behind making the Hindu female, a coparcener. Once a female is treated on par with a male, then for all purposes, the incidents of Coparcenary property, as mentioned in the Act, should follow in letter and spirit. Consistency is a virtue. The provisions of amended Section 6 of the Act cannot be applied in piecemeal. Absence of pellucidity in statutory provisions can be baffling for the Courts and gainful to lawyers.
5.10 Moreover, sub-section (2) of amended Section 6 postulates that the 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. The words ‘Notwithstanding anything contained in this Act’ can be interpreted to mean that the said provision will take precedence over Sections 14 & 15.
5.11 The improvement in the status of the Hindu female has also led to an uncharacteristic situation, whereby in a family consisting of just the husband and wife, each one can be part of a Coparcenary. There is also a likelihood that a Coparcenary can comprise females alone and a female can be ‘Kartha’ of a Coparcenary.
5.12 By virtue of the changes brought in by the Amendment Act, both sons and daughters of a coparcener have been placed on an equal pedestal. Since the property held by them is with the incidents of ‘Coparcenary ownership’, a son’s son, a son’s son’s son as well as a daughter’s daughter, daughter’s daughter’s daughter would become coparceners, by birth. This rule will also be applicable in the case of son’s daughter or daughter’s son and so on.
5.13 Hypothetically speaking, if the status of a female Hindu was improved, keeping un-amended Section 6 of the Act in mind, it could have been said that on the death of a female coparcener, having at the time of her death an interest in a Mitakshara Coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the Coparcenary and not in accordance with the Act. However, Section 6 has been entirely replaced by Amendment Act and thus such an interpretation is not possible.
5.14 It is germane to mention here that key amendments were brought to Section 6 of the Act, in erstwhile Andhra Pradesh by Act 13 of 1986 with effect from 05.09.1985, Tamil Nadu by Act 1 of 1990 with effect from 23.03.1989, Karnataka by Act 23 of 1994 with effect from 28.07.1994 and Maharashtra by Act 40 of 1994 with effect from 25.11.1994. These States did their bit to improve the status of daughters, by passing enactments improving the status of unmarried daughters to the rank of coparcener. However, after 09.09.2005, the Amendment Act has ensured uniformity in respect of the rights of Hindu females, throughout the Country.
5.15 Howbeit, the mode of succession on the intestacy of a daughter, who becomes a coparcener in terms of the amended Section 6 of the Act, has not been a subject matter of great discussion. One of the reasons is because the daughter, who is entitled to the benefit of the amended Section 6, is herself embroiled in controversy, attempting to assert her right. But the same scenario is unlikely to continue. It may crop up for discussion anytime at the level of a Constitutional Court. It is reiterated that the provisions of Sections 14 & 15 of the Act cannot be applied on the intestacy of a female coparcener, as it would negate the import of sub-section (1) of amended Section 6 “shall be held by her with the incidents of Coparcenary ownership”. Therefore till the relevant provisions are amended, the Courts will have to tread carefully and cautiously import the provisions of Section 8 of the Act, with necessary changes. This is primarily because Sections 14 & 15 of the Act were drafted, without foreseeing the fact that, the Hindu female would become a coparcener, one day.
ASSAY ON FACTIOUS QUESTION (b):
6.1 The issues pertaining to rights of beneficiaries under amended Section 6 of the Act vis-à-vis the rights of coparceners, who had sought partition, prior to the coming into force of the amended Act and the applicability of the Amendment Act to pending litigations, are concatenating and hence, discussed in unison.
6.2 In Hindu families, jointness is the norm. Partition basically implies severance of joint status and ends joint ownership. Traditionally, an unequivocal declaration of intention by a coparcener to separate himself from the family was sufficient to constitute partition. Such partition should not be confused with defacto division of property and allotment of shares. Partition could be effected even by a demand for a share in the properties or by institution of a suit. Severance of status was a matter of individual decision on the part of the coparcener. Once partition takes place, the coparceners stand in severalty, as their shares get demarcated. Shares of the coparceners are defined and parties hold the property as tenants-in-common. Now the two questions are (a) Whether expression of such intention leading to severance in status would result in determination of the actual shares and consequently, militate against applicability of the amended provisions of Section 6 of the Act ? & (b) What is the effect of such expression of intention resulting in severance of status on pending suits and appeals ?
6.3 The statutory provisions which create or take away substantive rights are ordinarily prospective. They can be retrospective, if made so expressly or by necessary implication. If any provision of a legislation, the purpose of which is to benefit a particular class of persons is ambiguous, so that it is capable of two meanings, the meaning which preserves the benefits should be adopted. Rules of interpretation are meant to find out the true intent of the enactment and set right any incongruity.
6.4 As early as on 18.01.1991, a three member Bench of the Supreme Court in the decision in S. Sai Reddy Versus S. Narayana Reddy and Others reported in 1991 (3) SCC 647, decided the applicability of the provisions of Section 29-A of Act 13 of 1986, introduced by erstwhile Andhra Pradesh with effect from 05.09.1985, to pending proceedings. In the case before Supreme Court, the unmarried daughters had claimed the benefit of the newly inserted provision, whilst the matter was pending before the trial Court at the stage of passing of final decree. The trial Court had rejected their application on the grounds that since the preliminary decree was passed and specific shares of the parties were declared, it was not open to the unmarried daughters to claim share in the property by virtue of the amended provisions of the Act. The unmarried daughters preferred revision before the High Court. The High Court declared that in view of the newly added provision, the daughters were entitled to a share in the joint family property. On appeal, the Supreme Court held that the amending provision is a beneficial legislation which also achieves the constitutional mandate of equality between sexes and that only in case of a prior partition of family property, a daughter was disentitled to claim a share in the property. It was further held that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective properties, the partition is not complete and that the preliminary decree which determines the shares does not bring about the final partition. It was specifically held that the concept of partition, that the legislature had in mind, while introducing the amendment therein, could not be equated with a severance of the status of the joint family, which can be effected by an expression of a mere desire by a family member. The partition referred to in the amended provision was held to be one which was complete in all respects and had brought about an irreversible situation. It was observed that a preliminary decree which merely declared the shares which are themselves liable to change, cannot bring about any irreversible situation. When the final decree had not been passed and the property had not been divided by metes and bounds, the provisions of the amending Act in question were held to be applicable. Resultantly, the Supreme Court held that the amended provisions conferring right on unmarried daughters were applicable to proceedings, instituted even prior to coming into force of Act 13 of 1986, irrespective of whether it was at the stage of suit or appeal.
6.5 Even earlier on 14.09.1990, a three member Bench of the Supreme Court in the decision in Income-Tax Officer, Calicut versus Smt. N.K. Sarada Thampatty reported in AIR1991 SC 2035, while interpreting the meaning of the word “Partition” as defined by Section 171 of the Income Tax Act, 1961 held that even a partition effected by a decree of Court cannot be recognized unless there was a physical division of property by metes and bounds. It was further held that a partition effected by agreement or through Court’s decree should be followed by actual physical division of the property. Nevertheless, it had only distinguished the partition defined by the Income Tax Act, 1961 from the general principles of Hindu Law.
6.6 The amendments brought in by the Amendment Act stand on a similar footing. If the law laid down by the Supreme Court in the cases cited above is applied, the issue of applicability of the amended provisions of the Act to pending proceedings, is no longer res integra.
6.7 Explanation appended to Section 6(5) of the Amended Act defines ‘Partition’ referred to in the Proviso to sub-section (1) of amended Section 6, to mean any ‘Partition’ made by execution of a registered partition deed or a partition effected by a decree of Court. A ‘Partition’ effected by decree of Court connotes the passing of final decree and actual division by metes and bounds. The ‘Partition’ contemplated by the amended Section 6 is unequivocal. Severance in status will be tantamount to ‘Partition’ as per amended Section 6. Amended Section 6 presupposes actual physical division of properties by metes and bounds or a registered partition prior to the cut-off date, viz. 20.12.2004, to negate the claims by daughters of coparceners. To put it differently, unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Amendment Act. This is the import of Section 6(5) and Explanation appended to it.
6.8 From a scrutiny of the provisions of amended Section 6 and by applying the rationes decidendi laid down in the afore-said decisions, it can be stated that the provisions of Section 6 of the Amendment Act are applicable, to pending proceedings instituted before 09.09.2005, irrespective of whether they are pending at the stage of suit or appeal. Similarly ‘severance in status’ cannot deter a Hindu daughter, eligible in other respects, from claiming a share in terms of amended Section 6.
6.9 The following illustrations will help comprehend the right of the daughters, who were elevated to the status of coparceners, vis-à-vis the coparceners, who had sought partition, prior to coming into force of the Amendment Act and the applicability of the Amendment Act to pending proceedings:
(i) Suppose a Coparcenary consists of father ‘A’, sons ‘B’ & ‘C’ & daughter ‘D’, where son B sues for partition in the year 2003, claiming 1/3rd share and the suit is pending as on 09.09.2005, when the Amendment Act came into force. Now the daughter ‘D’ would be entitled to claim 1/4th share, irrespective of whether the suit is pending before the Trial Court or in appeal or at the stage of passing of final decree. This is because of the fact that actual division by metes and bounds had not taken place and hence the Amendment Act can be applied, as the other condition i.e., the father ‘A’ being alive on 09.09.2005, is fulfilled. This is a classic case where the severance of status resulting from the demand made by son ‘B’ claiming 1/3rd share is partly negated, due to the benefit conferred upon the daughter by the Amendment Act.
(ii) Suppose a family consists of father A, son B, married daughter C and unmarried daughter D. Let us assume that the unmarried daughter D has instituted a suit in the year 2000, on the basis of Tamilnadu Act 1 of 1990. (As stated earlier, similar enactments were passed in Karnataka, erstwhile Andhra Pradesh and Maharashtra, wherein provision was made to improve the status of unmarried daughters to that of coparceners). The suit was decreed granting 1/3rd share each to unmarried daughter D, father A and son B and appeal is pending, when the Amendment Act came into force. In such a case, amendments effected by Central Act will supersede the State enactments in view of Article 254 of the Constitution of India. Thus in this case, married daughter ‘C’ can claim modification of the preliminary decree by seeking 1/4th share, as there was no actual division by metes and bounds, provided her father ‘A’ was alive as on 09-09-2005.
6.10 From illustration (i) it can be seen that two conditions are required for applying the provisions of the Amendment Act viz. (a) Actual division by metes and bounds should not have taken place before 20.10.2004 and (b) The father of the daughter seeking status of a coparcener should be alive as on 09.09.2005. The mere intention of the coparcener to separate and the severance in status caused by such intention will not impede the applicability of the Act. In other words, unless and until the severance in status has led to actual division by metes and bounds, the shares can be altered and preliminary decree can be modified.
6.11 Illustration (ii) pertains to a situation where an unmarried daughter had claimed the benefit under the State enactment and during the pendency of the proceedings, amended Section 6 paved way for a married daughter to step in and claim a share.
THE EPILOGUE
7.1 When amended Section 6 and Section 8 of the Act are read in tandem, it is hard to envision the continuity of a Coparcenary. The provisions of Section 6 of the Act, even prior to amendment, did not eternalize the continuance of a Coparcenary, as intestacy of a coparcener, survived by Class I female heirs, posed a hurdle at every stage it happened. In fact, sub-section (3) of amended Section 6, is a sure death knell for the continuance of a Coparcenary, as devolution by survivorship is no longer possible, with regard to the interest of the deceased coparcener. By endlessly applying the provisions of Section 6 (both before and after amendment) and Section 8 of the Act, there will be disintegration of shares and properties at each stage of partition, which will eventually lead to eradication of Coparcenary properties, more so if there are no future acquisitions. This is because the fragmentation of shares at every stage caused by operation of amended Section 6(3) will ultimately lead to elimination of Coparcenary properties. Though Hindu law does not require that properties should be immovable, the harsh reality is that without immovable properties, it is highly doubtful as to whether a Coparcenary is prolongable. Creation of new Coparcenaries is also on the wane. This is an era, where Hindu couples constitute Nuclear families by adhering to one child norm or at the best have two children. It is a rarity to see Hindu families having more than two children. There are instances of coparceners disposing of the Coparcenary properties situate in their native villages and distributing the sale proceeds amongst themselves, while relocating. This naturally leads to obliteration of Coparcenary. That apart, the number of Settlement Deeds and Release Deeds executed by parents in favour of their children with a view to avoid future litigation, is again a huge blow for continuance of Coparcenaries, as the character of the property gets altered. Envisaging that a Coparcenary is created by operation of amended Section 6, it is mindboggling to ascertain the shares of coparceners, as it may consist of heirs of sons and daughters. Consequently, the author is unable to persuade himself to explore further on those lines. Thus, notwithstanding the wordings of amended Sections 4 & 6, indefinite prolongation of the concept of Coparcenary is highly improbable. In the humble view of the author, with the exception of litigations involving Coparcenary properties, the concept of Coparcenary, in the present scenario, can remain only in the statute and not in realism. Whether such an outcome was intended by the lawmakers or not is immaterial.
7.2 Irrefragably, the law of intestate succession in respect of the properties inherited by female Hindu coparceners, under amended Section 6, is nebulous. The lack of a provision akin to Section 8 of the Act leads to dubiety in deciding the devolution of shares on the intestacy of a female Hindu, who had become a coparcener in terms of Section 6 of the Amended Act. In cases of such intestacy, it is in-apropos to apply the provisions of Sections 14 & 15 of the Act, as they never contemplated the property of a female Hindu coparcener. Section 14, which postulates that the property acquired by a Hindu female is her absolute property, cannot be applied to the Coparcenary property, in view of Sections 6(1)(c), 6(2) & 6(3) of the Amendment Act, which mandate that it shall have the incidents of Coparcenary ownership and liabilities thereon. Section 15 of the Act is not suggestive of Coparcenary property. To put it succinctly, a property cannot partake the character of Coparcenary property and separate property, at the same time. It can either be Coparcenary property or absolute property of the Hindu female. It is apposite to mention that the provisions of Sections 14 & 15 encompass those Hindu mothers and widows, who are not qualified to claim the benefits of the amended Section 6 of the Act. If necessary changes are introduced, it will provide clarity while applying the beneficial provisions of amended Section 6 of the Act. Thus, Sections 14 & 15, which deal with character of the property possessed by a female Hindu and mode of intestate succession of Hindu females, require to be reframed, so as to make them applicable to the other Hindu females, except those treated as coparceners by operation of Section 6 of the Amendment Act. Eventually, it has to be concluded that amended Section 6 is to a certain extent, ill-drafted and requires to be redefined, amongst other paradoxes, with regard to specifying the mode of intestate succession of Hindu females, who had become coparceners by operation of Section 6 of the Amendment Act.
7.3 As analyzed in the preceding paragraphs, the amended provisions will have a bearing over pending litigations, provided the conditions required for applying the same exist. A suit for partition does not terminate, upon passing of preliminary decree. It continues till actual division takes place by metes and bounds, after passing of final decree. Hence, the amended provisions can be applied to pending proceedings, provided actual division by metes and bounds has not taken place. Severance of status of joint family effected by a mere desire or institution of suit cannot be equated with the ‘partition’, conceptualized by the legislature in the Proviso to Section 6(1)(c) and Explanation to Section 6(5) of the Amended Act. Thus, such severance in status will not militate against claims arising under amended Section 6 of the Act.
7.4 The author would wrap-up by expressing that statutory provisions ought to be unambiguous and lucid, without giving room for conflicting interpretations, more so, when they pertain to substantive rights of the parties.
7.5 Eventually, if a question is posed to the author, whether this critique is exhaustive in relation to the provisions discussed upon, the answer is an emphatic ‘NO’.
![[4/5, 12:24] Srimathi Advt Mhc: A good jdgmt by MGR J [4/5, 12:30] Sekarreporter: 🙏🏽 [4/5, 12:31] Srimathi Advt Mhc: Very beautifully penned starting on a philosophical note ” You will never be a better you…..” *Justice M.Govindarajan. special* mention shd lao be made of the AAG *J.Ravindran* making a fair representation appearing against his own officers](https://www.sekarreporter.com/wp-content/themes/hueman/assets/front/img/thumb-medium-empty.png)
