UNINTENDED CONSEQUENCES OF HINDU SUCCESSION (AMENDMENT) ACT, 2005 : Can one have the cake and eat it too ? by Srinath Sridevan son of judge praba sridevan
by Srinath Sridevan
Introduction
At the outset,the author clarifies that this article is not intended to attack the very laudable and excellent amendments brought to the law by the Hindu Succession (Amendment) Act, 2005. This article is intended to focus on one unintended consequence brought about by the replacement of Section 6 of the Hindu Succession Act, 1956, by the Amendment Act.
The Statute and the Amendment
2.1 Section 6 of the Hindu Succession Act, 1956, as it originally stood, read thus:-
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 haw 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.
2.2 For the purpose of this article, we are concerned only with Explanation 2. Section 6 (along with its proviso) operates in tandem with Section 8. These sections have fallen for interpretation in innumerable decisions. Suffice it to extract a few, viz.Eramma v Virupanna (reported in AIR 1966 SC 1879), ACIT v PL. KaruppanChettiar (reported in AIR 1979 Madras p. 1, equivalent citation 114 ITR 527), Devaraj v Jayalakshmi (reported in (1971) Vol. 83 LW p. 736, equivalent citation 1971(1) MLJ 429), Arunachalathamma v Ramachandran (reported in AIR 1963 Mad 225), Sheela Devi v Lal Chand (reported in (2006) Vol.8 SCC p. 581) and GantaAppalanaidu v GantaNarayanamma (reported in AIR 1972 AP p. 258). It is not out of place to state here that the full bench judgment in PL KaruppanChettiar case (supra) was approved in CWT v Chandarsen (reported in (1986) Vol. 3 SCC p. 567). Most recently, we have the pronouncements of the Hon’ble Apex Court in Uttam Singh v Saubhag Singh (reported in(2016) Vol. 4 LW p. 309), and our Hon’ble High Court in Krishnamoorthy v Pondeepankar(reported in (2017) Vol.3 CTC p. 170). The list could go on, but I stop with the above for it is sufficient to establish the propositions which follow.
2.3 A conspectus of the above authorities would yield the following result:-
(a) Section 6 must be read with Section 8.
(b) A coparcenary interest would, on the death of a coparcener, devolve by survivorship, under the main Section 6, only in the absence of female heirs.
(c) In all other cases, Proviso to Section 6 would operate in conjunction with Section 8. This Proviso carves out an exception where such coparcener leaves behind him, a female heir, or a male heir of a female heir within Class 1, and states that in such cases, such interest would devolve by testamentary or intestate succession under the Act, and not by survivorship.
(d) Explanation 1 to the Proviso defines the concept of interest in the coparcenary, by stating that it is the notional share that would have been allotted to such coparcener, if a partition had taken place immediately prior to his death. (This Explanation has been lucidly interpreted in GurupadMakhdum’s case (reported in (1978) Vol. 3 SCC p. 383)).
(e) Explanation 2 to the Proviso precludes a person who had already separated himself from the coparcenary before the death of the deceased or his heirs from claiming a share in the devolving interest as on intestacy.
2.4 Thus, the Hindu Succession Act of 1956 (prior to the State and Central amendments) had a strange anomaly where male coparceners had certain special rights, by virtue of the main Section 6. Of course, in the presence of Class 1 female heirs, the Proviso came into operation and gave female heirs a share in the interest of the male coparcener, and that share was determined by application of the legal fiction expounded in Explanation 1.
However, the special rights of male coparceners in scenarios where the Proviso did not operate, continued to fester on in the Act.2.5 This unfair anomaly was rectified in 2005. Section 6 has now been replaced in entirety by the Hindu Succession (Amendment) Act, 2005, and currently reads thus:-
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 in, 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: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(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 a decree of a court.
By the amendment, the Legislature has undone the historical wrong of excluding women from sharing in the coparcenary property. Thus, the Legislature has introduced the concept of women being treated as coparceners on par with men, thereby making the erstwhile Proviso to Section 6, a rule of universal application. We also notice that the new Section 6(3) and Explanation thereto, are a broader re-enactment of erstwhile Proviso to Section 6 and erstwhile Explanation 1. Explanation 2 was a codification of the pre-existing Hindu Law as to divided sons. In West and Buhler's Hindu Law 3rd Edition at page 63, we find the following, “Sons who have separated from their father and his family are passed over in favour of sons who have remained united with him, or were born after the separation. This is an application of the principle that a joint and undivided succession of the descendants being taken as the general rule, those who have been exceptions to it and who having been exceptions have since ceased to be so, are treated accordingly. The rights of succession are as to their natural extent their rights as they would be in a partition made immediately on the death of the propositus.". The intention that divided sons (and their children) should not return back to share in the later division of the coparcenary was embodied in Explanation 2. Under the 2005 Amendment, the concept of a coparcenary has been retained, and yet, Explanation 2 has vanished altogether.Let us examine the consequences.3 The Anomaly
3.1 Let us now examine a family as under:-
FATHER = MOTHER SON1 SON2 = DAUGHTER IN LAW GRANDSON GRANDDAUGHTER Now, let us consider a case where the following occurs:-(a) The family has coparcenery property.
(b) Son1 files a partition suit against Father and Son2 for partition of his 1/3rd share, and obtains a decree and separates out his 1/3rd share. Father and Son2 do not separate.
(c) Thereafter, Father dies.
3.2 Under old Section 6
Under the old Section 6, Son1’s wife, son and daughter would share in Son’s divided share. They would have no right in the father’s share in the property in respect of which he continued in joint status with Son2. This is because Explanation 2 operates as a bar.
The locus classicus on the interpretation of Explanation 2 is the judgment of His Lordship Justice Chinnappa Reddy (as he then was), who decided a suit for partition in an identical factual scenario (as we have above) in GantaAppalla Naidu’s case (reported in AIR 1972 AP 258) in the following terms:-Explanation 2 to Section 6 also does not help the defendants in the present case. According to the proviso to Section 6 the interest of a male Hindu in coparcenary property shall not devolve by survivorship if there is a female relative specified in class “1” of the Schedule or a male relative specified in that class who claims through such female relative. That is to say, even though the property is coparcenary property which should devolve on the surviving coparceners in accordance with the main provision of Section 6, it shall not so devolve if there is a female relative specified in class (1) etc. In such an event, the property shall devolve by testamentary or intestate succession as the case may be. Explanation 2 provides that a separated member of the coparcenary cannot take advantage of the proviso to claim a share in property. An example will make the position clear. Suppose A dies leaving a divided son B, an undivided son C and a widow D. At the time of his death A and C alone are members of a coparcenary. On A’s death his half share in the coparcenary property shall not go by survivorship to C since there is a female relative specified in Class I. It shall devolve by intestate succession. The two sons and the widow will be heirs but Explanation 2 excludes the divided son B. The result therefore is that the half share of A in the coparcenary property shall devolve by intestate succession on C., his undivided son and D, his widow. That is all the effect of the explanation. Where property which ought to devolve by survivorship on an undivided coparcener under the main provision of Section 6 devolves on the heirs as if on intestacy because of the existence of the female relative etc., mentioned in the proviso to Section 6, the explanation provides that the divided coparcener, nonetheless, shall not claim as an heir. The explanation does not however prevent a divided son from claiming succession on intestacy if there is no person on whom the property can devolve by survivorship in accordance with the provisions of Section 6. Section 8 applies to every case of a Hindu dying intestate leaving no one on whom the property can devolve by survivorship,
Thus, it is clear that in our example above, the legal heirs of Son1 would have no right to make a claim on Father’s share in the residual coparcenery property being enjoyed by him up to his death, with Son2.3.3 Under new Section 6
Under the new law, Section 6(3)(b) would operate in the example that we have taken, and the children of the predeceased Son1, would return to take a second share at their grandfather’s interest in the coparcenary.
3.4 Let us go a step further. Let us assume a case where along with Son1 and Son2, our ‘Father’ in the example above also had a Daughter. Now, take a case where Son1 had taken his share at a prior partition and that Father continued with Son2, and that Father died after 2005.
Under the 2005 Amendment, the Daughter would be a coparcener along Son2 and Father (Son1 having separated himself earlier). However, on Father’s death, since Explanation 2 no longer exists, the heirs of Son1 would succeed to Father’s interest in the coparcenary. Therefore, the omission of Explanation 2 does not further the cause of female property rights or gender equality.Is this a problem ?
4.1 As we have seen supra, Explanation 2 was inserted in old Section 6, as a codification of the pre-existing Hindu Law as to rights of divided sons.
4.2 The Full Bench of the Madras High Court in ACIT v Karuppan (reported in AIR 1979 Madras p. 1), after referring to Section 4 of the Hindu Succession Act, went on to hold, “From this, it is possible to conclude that the statute has no intention whatever of abrogating the principles of Hindu Law in toto or in a comprehensive manner and that it intends only to affect those principles to the extent to which provision had been made in the Act which abrogates or strikes a discordant note to the principles of the established Hindu Mitakshara law. When we look at Section 6 of the Act, we find that the main body of the section in specific terms refers to the principles of survivorship obtaining in Hindu Law and serves it. But to this section engrafted a proviso which clearly makes an inroad into the principle of survivorship in certain circumstances.”.
4.3 The ancient law as to divided sons has been very beautifully explained by a Division Bench in Nana Tawker v Ramachandra Tawker (reported in (1908) Vol. 2 I.C. p. 519 (Mad)), wherein this Hon’ble Court analysed the ancient texts and ruled as under:-
In Sarvadhikari’s Law of Inheritance–Tagore Law Lectures 1880, page 886 it is laid down broadly that “sons legally separated from their father had not on his death any claim to inherit his property with a son not separated.” The same rule is found in Macnaughten’s Hindu Law Vol. IT Precedents of Inheritance, Section 1, Case XII.
The argument that there is no text which says in so many words that the son who has remained undivided succeeds to the father’s self-acquisition to the exclusion of the divided son may be met by stating that the broad principles of the Hindu Law being what they are there is no necessity for such a text. It may be pointed out, however, that for the special case of re-union after partition, the Mitakshara makes provision in chapter II Section 9 and it is clear, therefore, that the re-united sons would take their father’s property to the exclusion of the sons who were divided from their father. Similarly in the Vivada Chintamani, Edition 1863 at page 304 we find Re-union can also take place between father and son. It is also proper that the title of the sons to the estate of their father should cease after the division of property and should revive after their re-union.”
In Vyavastha Chandrika Vol. II among precedents of partition, at page 404 we find it stated that in a Hindu family where a re-union has taken place among certain members after partition the members of the re-united family and their descendents succeed to each other to the exclusion of the members of the unassociated or not reunited branch.
4.4 Nana Tawkerwas considered by the Hon’ble Full Bench in VairavanChettiar vs Srinivasachariar (reported in (1921) Vol. 13 LW p. 475) wherein the Hon’ble Full Bench approved the view of the Division Bench in Nana Tawker, excepting on a point with which we are not concerned here.
4.5 As has been held by the Hon’ble Full Bench in KaruppanChettiar (reported in AIR 1979 Madras p. 1) and recently reiterated in Krishnamoorthy v Pondeepankar (reported in (2017) Vol.3 CTC p. 170), the Hindu Succession Act, 1956, not only to replace the ancient Hindu Law, but also to codify it in certain respects.
4.6 Based on the above, the author submits that the Legislature did the following in the original 1956 Act:-
(a) Codified the ancient law as to Survivorship in the main Section 6
(b) Abrogated the ancient law, in the circumstances covered by the Proviso (and replacing it with Section 8 and 30)
(c) Retained the ancient law as to divided sons, in the circumstances covered by Explanation 2.
Now, the 2005 Amendment, has abrogated the law as to survivorship in toto, in the wholesale replacement of Section 6. There seems to be no reason behind the omission of Explanation 2.
4.7 In the famous ‘Wilful Defaulter’ case (Sundaram Pillai v Pattabiraman, reported in AIR 1985 SC p. 582), the Hon’ble Supreme Court after considering all the relevant precedents laid down as under:-
Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.
In Union of India v Martin Lottery (reported in (2009) Vol.12 SCC p. 209), the Hon’ble Supreme Court went a step further and held that an Explanation can even create substantive law. This was, of course, a tax case and a new head of taxation was introduced. The author respectfully submits that this may not be entirely applicable in an attempt to interpret the scope and import of Explanation 2.4.8 We therefore apply the Sundaram Pillai principles in interpreting Explanation 2. If we do so, we can clearly see that Explanation 2, which codified the ancient law as to divided sons,was intended only to augment the Proviso to old Section 6.
The new Section 6 broadens the ambit of the Proviso to old Section 6. There can be no reason for deletion of Explanation 2.
4.7 In these circumstances, it is submitted that the omission of Explanation 2 will now give rise to claims by persons (divided children or heirs of divided children) who have never had a right in their erstwhile family’s coparcenary property, prior hitherto.
This, it is submitted, is an unintended consequence of omission of Explanation 2. Those who choose to divide can thus have the cake at the first partition, and eat it once more, at the second division.5 Conclusion
The 2005 Amendment to the Hindu Succession Act has done away with a great many evils. By an accidental slip, the draftsman appears to have perpetrated a newevil !
The Courts will have to deal with an argument that the omission of Explanation 2 is deliberate, and that therefore, divided children (and their heirs) can share at a later division of the coparcenary interest. Possibly, the Courts will find a way forward by treating Explanation 2 as declaratory and thereby treating its omission as not changing the underlying legal position. This may be a way to thwart vexatious claims.
