Updated: October 13, 2011 19:40 IST
Hindu woman entitled to equal property rights: Supreme Court
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A Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005, the Supreme Court has ruled.
A bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment.
The apex court said the female inheritors would not only have the succession rights but also the same liabilities fastened on the property along with the male members.
“The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The legislature has now conferred substantive right in favour of the daughters.
“According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal,”Justice Lodha, writing the judgment, said.
The term coparcener refers to the equal inheritance right of a person in a property.
The apex court passed the ruling while upholding the appeal filed by Ganduri Koteshwaramma, daughter of late Chakiri Venkata Swamy, challenging the Andhra Pradesh High Court’s decision not to recognise equal property rights of women along with their male siblings.
http://www.lawcommissionofindia.nic.in/kerala.htm
“Property Rights of Women: Proposed Reforms under the Hindu Law”.
MAY, 2000
Back to Law Commission Home Page
LAW COMMISSION OF INDIA
174TH REPORT
ON
“Property Rights of Women:
Proposed Reforms under the Hindu Law”.
MAY, 2000
D.O. No.6(3)(59)/99-LC(LS)
May 5, 2000
Dear Shri Jethmalaniji,
I am forwarding herewith the 174th Report on “Property Rights of Women: Proposed Reforms under the Hindu Law”.
2. In pursuance of its terms of reference, which inter alia, oblige and empower the Commission to make recommendations for the removal of anomalies, ambiguities and inequalities in the law, the Commission undertook a study of certain provisions regarding the property rights of Hindu women under the Hindu Succession Act, 1956. The Commission had taken up the aforesaid subject suo motu in view of the pervasive discrimination prevalent against women in relation to laws governing the inheritance/succession of property amongst the members of a joint Hindu family.
3. Social justice demands that a woman should be treated equally both in the economic and the social sphere. The exclusion of daughters from participating in coparcenery property ownership merely by reason of their sex is unjust. The Commission has also taken into consideration the changes carried out by way of State enactments in the concept of Mitakshara coparcenery property in the five States in India, namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka. The Commission feels that further reform of the Mitakshara Law of Coparcenery is needed to provide equal distribution of property both to men and women. The recommendations contained in the Report are aimed at suggesting changes in the Hindu Succession Act, 1956 so that women get an equal share in the ancestral property.
4. With a view to giving effect to the recommendations, a Bill entitled “Hindu Succession (Amendment) Bill, 2000” is annexed with the Report as Appendix ‘A’.
5. We hope that the recommendations in this Report will go a long way in attaining the objectives set out above.
With warm regards,
Yours sincerely,
(B.P. Jeevan Reddy)
Shri Ram Jethmalani,
Minister for Law, Justice & Co. Affairs,
Shastri Bhavan,
New Delhi
TABLE OF CONTENTS
Sl. No
CONTENTS
1.
CHAPTER -I
(INTRODUCTION)
2.
CHAPTER -II
(SECTION 6 OF THE HINDU SUCCESSION ACT - A STUDY)
3.
CHAPTER -III
(COPARCENARY: RELEVANCE AND ALTERNATIVES)
4.
CHAPTER -IV
(QUESTIONNAIRE AND ITS RESPONSES)
5.
CHAPTER -V
(CONCLUSIONS AND RECOMMENDATIONS)
6.
APPENDIX - A (THE HINDU SUCCESSION (AMENDEMENT) BILL, 2000)
7.
ANNEXURE - I
(QUESTIONNAIRE - LAW COMMISSION OF INDIA)
8.
ANNEXURE - II
(ANALYSIS OF THE QUESTIONNAIRE OF THE LAW COMMISSION)
9.
ANNEXURE - III
(WORKING PAPER ON COPARCENARY RIGHTS TO DAUGHTERS UNDER THE HINDU LAW)
10.
ANNEXURE - IV
THE KERALA JOINT HINDU FAMILY SYSTEM
(ABOLITION) ACT, 1975
THE HINDU SUCCESSION (ANDHRA PRADESH AMENDMENT) ACT, 1986
THE HINDU SUCCESSION (TAMIL NADU AMENDMENT) ACT, 1989
THE HINDU SUCCESSION (KARNATAKA AMENDMENT) ACT, 1994
THE HINDU SUCCESSION (MAHARASHTRA AMENDMENT) ACT, 1994
CHAPTER - I
INTRODUCTION
1.1 SCOPE
Discrimination against women is so pervasive
that it sometimes surfaces on a bare perusal of the law
made by the legislature itself. This is particularly so
in relation to laws governing the inheritance/succession
of property amongst the members of a Joint Hindu family.
It seems that this discrimination is so deep and
systematic that it has placed women at the receiving
end. Recognizing this the Law Commission in pursuance
of its terms of reference, which, inter-alia, oblige and
empower it to make recommendations for the removal of
anomalies, ambiguities and inequalities in the law,
decided to undertake a study of certain provisions
regarding the property rights of Hindu women under the
Hindu Succession Act, 1956. The study is aimed at
suggesting changes to this Act so that women get an
equal share in the ancestral property.
1.2 Issuing of Questionnaire and holding of
Workshop
Before any amendment in the law is suggested
with a view to reform the existing law, it is proper
that opinion is elicited by way of placing the proposed
amendments before the public and obtaining their views
and if possible by holding workshops etc. The
Commission thus decided to have the widest possible
interaction with a cross section of society including
judges, lawyers, scholars, Non-governmental
Organizations (NGO'S) etc. by issuing a questionnaire.
Their views were also elicited on several of the
provisions introduced by certain State Legislatures
regarding the property rights of Hindu women which had
been brought about by way of an amendment to the Hindu
Succession Act, 1956. The main focus/thrust of the
questionnaire (annexed as Annexure I) was to elicit
views on three issues namely:-
i) granting daughters coparcenary rights in the
ancestral property; or to totally abolish the
right by birth given only to male members;
ii) allowing daughters full right of residence in
their parental dwelling house; and
iii) restricting the power of a person to bequeath
property by way of testamentary disposition
extending to one-half or one-third of the
property.
1.2.1 The Commission received replies in response to
the questionnaire. These replies have been analysed and
tabulated and this is annexed as Annexure II.
1.2.2. Aiming at a wider and more intense interaction
the Law Commission in collaboration with the ILS, Law
College and Vaikunthrao Dempo Trust of Goa, organised a
two day workshop on "Property Rights of Hindu Women
proposed Reforms" in Pune on 28-29 August, 1999. At
this Workshop the Chairman and members of the Law
Commission held detailed discussions with eminent
lawyers and NGO'S and teachers of ILS Law College, Pune.
A Working Paper on Coparcenary Rights to Daughters Under
Hindu Law along with a draft bill was circulated. This
is annexed as Annexure-III.
1.2.3 The Law Commission has carefully considered all
the replies and the discussion at the workshop at Pune
before formulating its recommendations to amend the
Hindu Succession Act, 1956 with a view to giving the
Hindu women, an equal right to succeed to the ancestral
property.
1.3 The Background
Since time immemorial the framing of all
property laws have been exclusively for the benefit of
man, and woman has been treated as subservient, and
dependent on male support. The right to property is
important for the freedom and development of a human
being. Prior to the Act of 1956, Hindus were governed
by Shastric and Customary laws which varied from region
to region and sometimes it varied in the same region on
a caste basis. As the country is vast and
communications and social interactions in the past were
difficult, it led to a diversity in the law.
Consequently in matters of succession also, there were
different schools, like Dayabhaga in Bengal and the
adjoining areas; Mayukha in Bombay, Konkan and Gujarat
and Marumakkattayam or Nambudri in Kerala and Mitakshara
in other parts of India with slight variations. The
multiplicity of succession laws in India, diverse in
their nature, owing to their varied origin made the
property laws even mere complex.
1.3.1. A woman in a joint Hindu family, consisting
both of man and woman, had a right to sustenance, but
the control and ownership of property did not vest in
her. In a patrilineal system, like the Mitakshara
school of Hindu law, a woman, was not given a birth
right in the family property like a son.
1.3.2 Under the Mitakshara law, on birth, the son
acquires a right and interest in the family property.
According to this school, a son, grandson and a great
grandson constitute a class of coparcenars, based on
birth in the family. No female is a member of the
coparcenary in Mitakshara law. Under the Mitakshara
system, joint family property devolves by survivorship
within the coparcenary. This means that with every
birth or death of a male in the family, the share of
every other surviving male either gets diminished or
enlarged. If a coparcenary consists of a father and his
two sons, each would own one third of the property. If
another son is born in the family, automatically the
share of each male is reduced to one fourth.
1.3.3 The Mitakshara law also recognises inheritance
by succession but only to the property separately owned
by an individual, male or female. Females are included
as heirs to this kind of property by Mitakshara law.
Before the Hindu Law of Inheritance (Amendment) Act
1929, the Bengal, Benares and Mithila sub schools of
Mitakshara recognised only five female relations as
being entitled to inherit namely - widow, daughter,
mother paternal grandmother, and paternal great-grand
mother.1 The Madras sub-school recognised the heritable
capacity of a larger number of females heirs that is of
the son's daughter, daughter's daughter and the sister,
as heirs who are expressly named as heirs in Hindu Law
of Inheritance (Amendment) Act,1929.2 The son's daughter
and the daughter's daughter ranked as bandhus in Bombay
and Madras. The Bombay school which is most liberal to
women, recognised a nunmber of other female heirs,
including a half sister, father's sister and women
married into the family such as stepmother, son's widow,
brother's widow and also many other females classified
as bandhus.
1.3.4 The Dayabhaga school neither accords a right by
birth nor by survivorship though a joint family and
joint property is recognised. It lays down only one
mode of succession and the same rules of inheritance
apply whether the family is divided or undivided and
whether the property is ancestral or self-acquired.
Neither sons nor daughters become coparceners at birth
nor do they have rights in the family property during
their father's life time. However, on his death, they
inherit as tenants-in-common. It is a notable feature
of the Dayabhaga School that the daughters also get
equal shares alongwith their brothers. Since this
ownership arises only on the extinction of the father's
ownership none of them can compel the father to
partition the property in his lifetime and the latter is
free to give or sell the property without their consent.
Therefore, under the Dayabhaga law, succession rather
than survivorship is the rule. If one of the male heirs
dies, his heirs, including females such as his wife and
daughter would become members of the joint property, not
in their own right, but representing him. Since females
could be coparceners, they could also act as kartas, and
manage the property on behalf of the other members in
the Dayabhaga School.
1.3.5 In the Marumakkattayam law, which prevailed in
Kerala wherein the family was joint, a household
consisted of the mother and her children with joint
rights in property. The lineage was traced through the
female line. Daughters and their children were thus an
integral part of the household and of the property
ownership as the family was matrilineal.
1.4 However, during the British regime, the country
became politically and socially integrated, but the
British Government did not venture to interfere with the
personal laws of Hindus or of other communities. During
this period, however, social reform movements raised the
issue of amelioration of the woman's position in
society. The earliest legislation bringing females into
the scheme of inheritance is the Hindu Law of
Inheritance Act, 1929. This Act, conferred inheritance
rights on three female heirs i.e. son's daughter,
daughter's daughter and sister (thereby creating a
limited restriction on the rule of survivorship).
Another landmark legislation conferring ownership rights
on woman was the Hindu Women's Right to Property Act
(XVIII of ) 1937. This Act brought about revolutionary
changes in the Hindu Law of all schools, and brought
changes not only in the law of coparcenary but also in
the law of partition, alienation of property,
inheritance and adoption.3
1.4.1 The Act of 1937 enabled the widow to succeed
along with the son and to take a share equal to that of
the son. But, the widow did not become a coparcener
even though she possessed a right akin to a coparcenary
interest in the property and was a member of the joint
family. The widow was entitled only to a limited estate
in the property of the deceased with a right to claim
partition.4 A daughter had virtually no inheritance
rights. Despite these enactments having brought
important changes in the law of succession by conferring
new rights of succession on certain females, these were
still found to be incoherent and defective in many
respects and gave rise to a number of anomalies and left
untouched the basic features of discrimination against
women. These enactments now stand repealed.
1.5 The framers of the Indian Constitution took
note of the adverse and discrimnatory position of women
in society and took special care to ensure that the
State took positive steps to give her equal status.
Articles 14, 15(2) and (3) and 16 of the Constitution of
India, thus not only inhibit discrimination against
women but in appropriate circumstances provide a free
hand to the State to provide protective discrimination
in favour of women. These provisions are part of the
Fundamental Rights guaranteed by the Constitution. Part
IV of the Constitution contains the Directive Principles
which are no less fundamental in the governance of the
State and inter-alia also provide that the State shall
endeavour to ensure equality between man and woman.
Notwithstanding these constitutional mandates/
directives given more than fifty years ago, a woman is
still neglected in her own natal family as well as in
the family she marries into because of blatant disregard
and unjustified violation of these provisions by some of
the personal laws.
1.5.1 Pandit Jawaharlal Nehru, the then Prime
Minister of India expressed his unequivocal commitment
to carry out reforms to remove the disparities and
disabilities suffered by Hindu women. As a consequence,
despite the resistance of the orthodox section of the
Hindus, the Hindu Succession Act, 1956 was enacted and
came into force on 17th June, 1956. It applies to all
the Hindus including Buddhists, Jains and Sikhs. It
lays down a uniform and comprehensive system of
inheritance and applies to those governed both by the
Mitakshara and the Dayabahaga Schools and also to those
in South India governed by the the Murumakkattayam,
Aliyasantana, Nambudri and other systems of Hindu Law.
Many changes were brought about giving women greater
rights, yet in section 6 the Mitakshara Coparcenary was
retained.
1.6 The Law Commission is concerned with the
discrimination inherent in the Mitakshara coparcenary
under Section 6 of the Hindu Succession Act, as it only
consists of male members. The Commission in this regard
ascertained the opinion of a cross section of society in
order to find out, whether the Mitakshara coparcenary
should be retained as provided in section 6 of the Hindu
Succession Act, 1956, or in an altered form, or it
should be totally abolished. The Commission's main aim
is to end gender discrimination which is apparent in
section 6 of the Hindu Succession Act,1956, by
suggesting appropriate amendments to the Act.
Accordingly, in the next two chapters of this report the
Commission has made a broad study of section 6 of the
Hindu Succession Act, 1956, and the Hindu Succession
State(Amendment) Acts of Andhra Pradesh (1986), Tamil
Nadu(1989), Maharashtra(1994) and Karnataka(1994) and
the Kerala Joint Family System (Abolition) Act, 1975.
The Acts are annexed collectively as Annexure IV.
Foot notes
1. Mulla, Principles of Hindu Law (1998 17th ed by
S.A. Desai), p. 168.
2. Ibid.
3. Mayne's, Treatise on Hindu Law & Usage, (1996
14th Edition, ed. by Alladi Kuppuswami)
p.1065.
4. M. Indira Devi, "Woman's Assertion of Legal
Rights to Ownership of property" in Women & Law
Contemporary Problems, (1994 ed. by L. Sarkar
& B. Sivaramayya) at p.174; also see section
3(3) of Hindu Women's Right to Property Act,
1937.
CHAPTER II
SECTION 6 OF THE HINDU SUCCESSION ACT - A STUDY
2.1 The Hindu Succession Act, 1956
(hereinafter referred as the HSA) dealing with intestate
succession among Hindus came into force on 17th June,
1956. This Act brought about changes in the law of
succession and gave rights which were hitherto unknown,
in relation to a woman's property. However, it did not
interfere with the special rights of those who are
members of a Mitakshara coparcenary except to provide
rules for devolution of the interest of a deceased in
certain cases. The Act lays down a uniform and
comprehensive system of inheritance and applies,
inter-alia, to persons governed by Mitakshara and
Dayabhaga Schools as also to those in certain parts of
southern India who were previously governed by the
Murumakkattayam, Aliyasantana and Nambudri Systems. The
Act applies to any person who is a Hindu by religion in
any of its forms or develpments including a Virashaiva,
a Lingayat or a follower of the Brahmo Prarthana or Arya
Samaj; or to any person who is Buddhist, Jain or Sikh by
religion; to any other person who is not a Muslim,
Christian, Parsi or Jew by religion as per section 2.
In the case of a testamentary disposition this Act does
not apply and the interest of the deceased is governed
by the Indian Succesion Act, 1925.
2.2 Section 4 of the Act is of importance and gives
overriding effect to the provisions of the Act
abrogating thereby all the rules of the Law of
succession hitherto applicable to Hindus whether by
virtue of any text or rule of Hindu law or any custom or
usage having the force of laws, in respect of all
matters dealt with in the Act. The HSA reformed the
Hindu personal law and gave a woman greater property
rights, allowing her full ownership rights instead of
limited rights in the property she inherits under
Section 14 with a fresh stock of heirs under sections 15
and 16 of the Act. The daughters were also granted
property rights in their father's estate. In the matter
of succession to the property of a Hindu male dying
intestate, the Act lays down a set of general rules in
Sections 8 to 13.
2.3 DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY
Section 6 of the HSA dealing with devolution of
interest to coparcenary property states-
"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 devlove
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 his 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.
2.3.1 Before the commencement of the HSA, codifying
the rules of succession, the concept of a Hindu family
under Mitakshara school of law was that it was
ordinarily joint not only in estate but in religious
matters as well. Coparcenary property, in
contradistinction with the absolute or separate property
of an individual coparcenar, devolved upon surviving
coparceners in the family, according to the rule of
devolution by survivorship.
2.3.2 Section 6 dealing with the devolution of
the interest of a male Hindu in coparcenary property and
while recognising the rule of devolution by survivorship
among the members of the coparcenary, makes an exception
to the rule in the proviso. According to the proviso,
if the deceased has left him surviving a female relative
specified in Class I of Schedule I, 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 under this Act and not by
survivorship. Further, under section 30 a coparcener
may make a testamentary disposition of his undivided
interest in the Joint family property.
2.3.3 The rule of survivorship comes into operation
only:- (1) where the deceased does not leave him
surviving a female relative specified in Class I, or a
male relative specified in that Class who claims through
such female relative and , (ii) when the deceased has
not made a testamentary disposition of his undivided
share in the coparcenary property. The Schedule to the
Act read with Section 8 provides the following twelve
relations as Class I heirs son; daughter; widow; mother;
son of a pre-deceased son; daughter of a pre-deceased
son; son of pre-deceased daughter; daughter of a
pre-deceased daughter, widow of a pre-deceased son; son
of pre-deceased son of a pre-deceased son; daughter of
pre-deceased son of a pre-deceased son; widow of
pre-deceased son of a pre-deceased son.
2.3.4 Section 6 contemplates the existence of
coparcenary property and more than one coparcener for
the application of the rule of devolution by
survivorship. The head note of the section reads
"Devolution of interest in coparcenary property". The
language of the main provision to the effect that "his
interest in the property shall devolve by survivorship
upon the surviving members" indicates that the
devolution by survivorship is with reference to the
deceased coparcener's interest alone; this coupled with
the notional partition contemplated in Explanation 1 in
this section for the ascertainment of the interest of
the deceased coparcener in a Mitakshara coparcenary
property indicates that there is no disruption of the
entire coparcenary. It follows that the other
coparceners, would continue to be joint in respect of
the other coparcenary property till a partition is
effected.
2.3.5 It has already been pointed out above that the
main provision of this section deals with the devolution
of the interest of a coparcener dying intestate by the
rule of survivorship and the proviso speaks of the
interest of the deceased in the Mitakshara Coparcenary
Property. Now, in order to ascertain what is the
interest of the deceased coparcener, one necessarily
needs to keep in mind the two Explanations under the
proviso. These two Explanations give the necessary
assistance for ascertaining the interest of the deceased
coparcener in the Mitakshara Coparcenary Property.
Explanation I provides for ascertaining the interest on
the basis of a notional partition by applying a fiction
as if the partition had taken place immediately before
the death of the deceased coparcener. Explanation II
lays down that a person who has separated himself from
the coparcenary before the death of the deceased or any
of the heirs of such divided coparcener is not entitled
to claim on intestacy a share in the interest referred
to in the section.
2.3.6 Under the proviso if a female relative in class
I of the schedule or a male relative in that class
claiming through such female relative survives the
deceased, then only would the question of claiming his
interest by succession arise. Explanation I to section
6 was interpreted differently by the High Courts of
Bombay, Delhi, Orissa and Gujarat in the cases1 where
the female relative happened to be a wife or the mother
living at the time of the death of the coparcener. It
is now not necessary to discuss this matter as the
controversy has been finally set at rest by the decision
of the Supreme Court in 1978 in Gurupad v. Heerabai2
and reiterated later in 1994 in Shyama Devi v. Manju
Shukla3 wherein it has been held that the proviso to
section 6 gives the formula for fixing the share of the
claimant and the share is to be determined in accordance
with Explanation I by deeming that a partition had taken
place a little before his death which gives the clue for
arriving at the share of the deceased.
2.3.7 The Supreme Court in Gurupad's case observed:
"In order to ascertain the share of heirs in
the property of a deceased coparcener it is necessary in
the very nature of things, and as the very first step,
to ascertain the share of the deceased in the
coparcenary property. For, by doing that alone one can
determine the extent of the claimant's share.
Explanation I to Section 6 resorts to the simple,
expedient, undoubtedly a fictional partition, that 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 that property had
taken place immediately before his death. What is,
therefore required to be assumed is that a partition had
in fact taken place between the deceased and coparceners
immediately before his death. That assumption once made
is irrevocable. In other words, the assumption having
been made once for the purpose of ascertaining the share
of the deceased in the coparcenary property one cannot
go back on that assumption and ascertain the share of
the heirs without reference to it........ All the
consequences which flow from real partition have to be
logically worked out, which means that the share of the
heirs must be ascertained on the basis that they had
separated from one another and had received a share in
the partition which had taken place during the lifetime
of the deceased. The allotment of this share is not a
processual step devised merely for the purpose of
working out some other conclusion. It has to be treated
and accepted as a concrete reality, something that
cannot be recalled just as a share allotted to a
coparcener in an actual partition cannot generally be
recalled. The inevitable corollary of this position is
that the heir will get his or her share in the interest
which the deceased had in the coparcenary property at
the time of his death, in addition to the share which he
or she received or must be deemed to have received in
the notional partition."4
2.3.8 Again in State of Maharashtra V. Narayan Rao5
the Supreme Court carefully considered the decision in
Gurupad's case and pointed out that "Gurupad's case has
to be treated as an authority (only) for the position
that when a female member who inherits an interest in
joint family property under section 6 of the Act files a
suit for partition expressing her willingness to go out
of the family she would be entitled to both the interest
she has inherited and the share which would have been
notionally allotted to her, as stated in Explanation I
to section 6 of the Act. But it cannot be an authority
for the proposition that she ceases to be a member of
the family on the death of a male member of the family
whose interest in the family property devolves on her
without the volition to separate herself from the
family. A legal fiction should no doubt ordinarily be
carried to its logical end to carry out the purposes for
which it is enacted but it cannot be carried beyond
that. It is no doubt true that the right of a female
heir to the interest inherited by her in the family
property gets fixed on the date of the death of a male
member under section 6 of the Act but she cannot be
treated as having ceased to be a member of the family
without her volition as otherwise it will lead to
strange results which could not have been in the
contemplation of Parliament when it enacted that
provision and which might also not be in the interest of
such females."
2.4 Inequalities and Anomalies Discriminating Women
Despite the Constitution guaranteeing equality
to women, there are still many discriminatory aspects in
the Hindu law in the sphere of property rights. In our
society maltreatment of a woman in her husband's family,
e.g. for failing to respond to a demand of dowry, often
results in her death. But the tragedy is that there is
discriminatory treatment given to her even by the
members of her own natal family.
2.4.1 In the Hindu system, ancestral property has
traditionally been held by a joint Hindu family
consisting of male coparceners. Coparcenary as seen and
discussed earlier in the present work is a narrower body
of persons within a joint family and consists of father,
son, son's son and son's son's son. A coparcenary can
also be of a grandfather and a grandson, or of brothers,
or an uncle and nephew and so on. Thus ancestral
property continues to be governed by a wholly
partrilineal regime, wherein property descends only
through the male line as only the male members of a
joint Hindu family have an interest by birth in the
joint or coparcenary property. Since a woman could not
be a coparcener, she was not entitled to a share in the
ancestral property by birth. A son's share in the
property in case the father dies intestate would be in
addition to the share he has on birth.
2.5 Again, the patrilineal assumptions of a
dominant male ideology is clearly reflected in the laws
governing a Hindu female who dies intestate. The law in
her case in markedly different from those governing
Hindu males. The property is to devolve first to her
children and husband: secondly, to her husband's heirs;
thirdly to her father's heirs, and lastly, to her
mother's heirs.6 The provision of section 15(2) of HSA
is indicative again of a tilt towards the male as it
provides that any property she inherited from her father
or mother should devolve, in the absence of any
children, to her father's heirs and similarly, any
property she inherited from her husband or
father-in-law, to her husband's heirs. These provisions
depict that property continues to be inherited through
the male line from which it came either back to her
father's family or back to her husband's family.
2.6 The question is whether, the Hindu Succession
Act actually gave women an equal right to property or
did it only profess to do so? Significantly, the
provisions regarding succession in the Hindu Code Bill,
as originally framed by the B.N.Rau Committee and
piloted by Dr.Ambedkar, was for abolishing the
Mitakshara coparcenary with its concept of survivorship
and the son's right by birth in a joint family property
and substituting it with the principle of inheritance by
succession. These proposals met with a storm of
conservative opposition. The extent of opposition
within the Congress or the then government itself can be
gauged from the fact that the then Law Minister
Mr.Biswas, on the floor of the house, expressed himself
against daughters inheriting property from their natal
families. Sita Ram S. Jajoo from Madhya Bharat,
identified the reason for the resistance accurately,
when he stated: "Here we feel the pinch because it
touches our pockets. We male members of this house are
in a huge majority. I do not wish that the tyranny of
the majority may be imposed on the minority, the female
members of this house."7 However, the tyranny of the
majority prevailed when the Bill was finally passed in
1956. The major changes brought were:-
(1) Retention of the Mitakshara coparcenary with
only males as coparceners;
(2) Coparcener's right to will away his interest in
the joint family property. (This provision was
unexpectedly introduced by an amendment by the
then Law Minister Mr. Pataskar in the final
stages of the clause-by-clause debate when the
bill was to be passed, in 1956. It was widely
perceived and pro-claimed, even in the
contemporary press, to be a capitulation by
government.);
(3) Removal of exemption of Marumakkattayam and
Aliyasantana communities; that is, virtual
destruction of the only systems in which women
were the equivalent of full coparceners; and
(4) Alteration of original provision that a
daughter would get a share equivalent to half
the share of a son in self-acquired property of
the father who died intestate.8 The Select
Committee decided to make her share full and
equal to that of a son.
2.7 When Dr.Ambedkar was questioned as to how this
happened in the Select Committee he said: "It was not a
compromise. My enemies combined with my enthusiastic
supporters and my enemies thought that they might damn
the Bill by making it appear worse than it was.9
2.8 The retention of the Mitakshara coparcenary
without including females in it meant that females can
not inherit ancestral property as males do. If a joint
family gets divided, each male coparcener takes his
share and females get nothing. Only when one of the
coparceners dies, a female gets a share of his share as
an heir to the deceased. Thus the law by excluding the
daughters from participating in coparcenary ownership
(merely by reason of their sex) not only contributed to
an inequity against females but has led to oppression
and negation of their right to equality and appears to
be a mockery of the fundamental rights guaranteed by the
Constitution.
2.9 Another apparent inequity under the Hindu
Succession Act as per Section 23, is the provision
denying a married daughter the right to residence in the
parental home unless widowed, deserted or separated from
her husband and further denying any daughter the right
to demand her share in the house if occupied by male
family members. This right is not denied to a son. The
main object of the section is said to be the primacy of
the rights of the family against that of an individual
by imposing a restriction on partition. Why is it that
this right of primacy of family is considered only in
the case of a female member of the family?
2.10 The National report on the Status of Women in
India recommended that this discrimination in asking for
a partition be removed so that a daughter enjoys a right
similar to that of a son.10
2.11 However, the Supreme Court by its recent
judgment in Narashimaha Murthy v. Sushilabai11 held
that a female heir's right to claim partition of the
dwelling house of a Hindu dying intestate under section
23 of the HSA will be deferred or kept in abeyance
during the lifetime of even a sole surviving male heir
of the deceased until he chooses to separate his share
or ceases to occupy it or lets it out. The idea of this
section being to prevent the fragmentation and
disintegration of the dwelling house at the instance of
the female heirs to the detriment of the male heirs in
occupation of the house. thus rendering the male heir
homeless/shelterless.
2.12 A similar instance of inequity created by law
was the establishment of the new right to will away
property. The Act gave a weapon to a man to deprive a
woman of the rights she earlier had under certain
schools of Hindu Law. The legal right of Hindus to
bequeath property by way of will was conferred by the
Indian Succession Act, 1925. None of the clauses of
1925 Act, apply to Hindus except wills.
2.13 A rule firmly established before HSA was that a
Hindu cannot by will bequeath property, which he could
not have alienated by gift inter- vivos. A coparcener
under Dayabhaga law, however, could by gift dispose of
the whole of his property whether ancestral or
self-acquired, subject to the claims of those entitled
to be maintained by him. However, a coparcener under
Mitakshara law had no power to dispose of his
coparcenary interest by gift or bequest so as to defeat
the right of the other members. The coparcenary system
even restricted the rights of the Karta to alienate
property, thereby safeguarding the rights of all members
of the family including infants and children to being
maintained from the joint family property.
2.14 Although many powers were vested in the karta
or male head of the family, who was supposed to
administer the property in the interests of all members,
yet decisions regarding disposal of the family property
were to be taken collectively. Each male had an equal
share in the property, but the expenditure was not to be
apportioned only to males but also to females. The
right to will away property was traditionally unknown to
Hindus. It was introduced into the statute by virtue of
section 30 of the HSA. According to the said section
any Hindu may dispose of by will or other testamentary
disposition any property capable of disposition (this
includes his undivided interest in a Mitakshara
coparcenary property as per the Explanation) in
accordance with the provisions of the Indian Succession
Act, 1925. This is ironical as this testamentary right
right of his daughter by succession. It can also defeat
a widow's right. There is thus a diminution in the
status of a wife/widow.
2.15 According to Muslim law a person is restrained
from giving away all his property by will. He can only
will away a maximum of one-third of his property and the
rest has to be divided among the agnatic and Koranic
heirs. A person is, of course, not required to make a
will.
2.16 The proviso to section 6 of HSA also contains
another gender bias. It has been provided therein that
the interest of the deceased in the Mitakshara
Coparcenary shall devolve by intestate succession if the
deceased had left surviving a female relative specified
in class I of the Schedule or a male relative" specified
in that class, who claims through such female relative.
In order to appreciate the gender bias it is necessary
to see the devolution of interest under section 8 HSA.
The property of a male Hindu dying intestate devolves
according to section 8 of the HSA, firstly, upon the
heirs being the relatives specified in class I of the
Schedule. However, there are only four primary heirs in
the Schedule to class I, namely, mother, widow, son and
daughter. The remaining eight represent one or another
person who would have been a primary heir if he or she
had not died before the propositus. The principle of
representation goes up to two degrees in the male line
of descent; but in the female line of descent it goes
only upto one degree. Accordingly, the son's son's son
and son's son's daughter get a share but a daughter's
daughter's son and daughter's daughter's daughter do not
get anything. A further infirmity is that widows of a
pre-deceased son and grandson are class I heirs, but the
husbands of a deceased daughter or grand-daughter are
not heirs.12
FOOT NOTES
1. See Shiramabai v Kolgonda, 1964 Bom.263;
Kanahaya Lal v Jamna, 1973 Delhi 160;
Rangubai Lalji v Lakshman Lal Ji, 1966 Bom.
169;
See also Ananda v Haribandhu, 1967 orissa 90;
Vidyaben v Jadgish Chandra, 1974 Guj 23;
Susheelabai v Narayanarao 1975, Bom.257
2. (1978) 3 SSC, p.383: AIR 1978 SC, 1239
3. (1994) 6 SCC, Pp. 342-343
4. Supra n.2 at Pp. 389-390 (para 13): at 1243
5. AIR 1985 SC 716, at p.721 (para 9)
6. Ratna Kapoor and Brenda Cossman, Feminist
Engagements with law in India, Subversive
sites, 1996, p.134
7. The Constituent Assembly of India,
(Legislative) Debates Vol.VI 1949 Part II,
8. Madhu Kiswar, "Codified Hindu Law Myth and
Reality" Eco & Pol. Weekly, No.33 Aug 1994.
9. The Constituent Assembly of India (Legislative)
Debates Vol.VI 1949 Part II, p.841
10. Status of Women in India, A Synopsis of the
Report of the National Committee (1971-74)
p.53-54
11. AIR 1996 SC, 1826.
12. Dr. Tahir Mahmood Hindu Law, (1986; 2nd ed)
p.57.
CHAPTER - III
COPARCENARY: RELEVANCE AND ALTERNATIVES
3.1 It is apparent from the study of the previous
chapter that discrimination against a woman is writ
large in relation to property rights. Social justice
demands that a woman should be treated equally both in
the economic and the social sphere. The exclusion of
daughters from participating in coparcenary property
ownership merely by reason of their sex is unjust.
Improving their economic condition and social status by
giving equal rights by birth is a long felt social need.
Undoubtedly a radical reform of the Mitakshara law of
coparcenary is needed to provide equal distribution of
property not only with respect to the separate or
self-acquired property of the deceased male but also in
respect of his undivided interest in the coparcenary
property.
3.2 The New Coparcenary under State Acts : (ANDHRA
MODEL)
The idea of making a woman a coparcener was
suggested as early as 1945 in written statements
submitted to the Hindu Law Committee by a number of
individuals and groups; and again in 1956, when the
Hindu Succession Bill was being finally debated prior to
its enactment an amendment was moved to make a daughter
and her children members of the Hindu coparcenary in the
same way as a son or his children. But this progressive
idea was finally rejected and the Mitakshara Joint
family was retained.
3.2.1 The concept of the Mitakshara coparcenary
property retained under section 6 of the HSA has not
been amended ever since its enactment. Though, it is a
matter of some satisfaction that five states in India
namely, Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra
and Karnataka1 have taken cognisance of the fact that a
woman needs to be treated equally both in the economic
and the social spheres. As per the law of four of these
states, (Kerala excluded), in a joint Hindu family
governed by Mitakshara law, the daughter of a coparcener
shall by birth become a coparcener in her own right in
the same manner as the son. Kerala, however, has gone
one step further and abolished the right to claim any
interest in any property of an ancestor during his or
her lifetime founded on the mere fact that he or she was
born in the famly. In fact, it has abolished the Joint
Hindu family system altogether including the Mitakshara,
Marumakkattayam, Aliyasantana and Nambudri systems.
Thus enacting that joint tenants be replaced by tenants
in common.
3.2.2 The approach of the Andhra Pradesh, Tamil Nadu,
Maharashtra and Karnataka state legislatures is,
strikingly different from that of Kerala and these
states instead of abolishing the right by birth
strengthened it, while broadly removing the gender
discrimination inherent in Mitakshara Coparcenary. The
broad features of the legislations are more or less
couched in the same language in each of these Acts. The
amending Acts of Andhra Pradesh, Tamil Nadu and
Maharashtra add three sections namely, 29A, 29B and 29C
but Karnataka numbers them as Sections 6A, 6B and 6C of
the Act.
3.2.3 These state enactments provide equal rights to
a daughter in the coparcenary property and contain a
nonobstante clause. In these four states;
(a) the daughter of a coparcener in a Joint Hindu
Family governed by Mitakshara law, shall become
a coparcener by birth in her own right in the
same manner as the son and have similar rights
in the coparcenary property and be subject to
similar liabilities and disabilities;
(b) On partition of a joint Hindu family of the
coparcenary property, she will be allotted a
share equal to that of a son. The share of the
predeceased son or a predeceased daughter on
such partition would be allotted to the
surviving children of such predeceased son or
predeceased daughter, if alive at the time of
the partition.
(c) This property 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 will or other testamentary
disposition.
(d) The state enactments are prospective in nature
and do not apply to a daughter who is married
prior to, or to a partition which has been
effected before the commencement of the Act.
3.2.4 However, these four Hindu Succession
(Amendment) Acts have been criticised as they have given
rise to various difficulties in their working and
application. These four amending Acts, have
considerably altered the concept of the Mitakshara Joint
family and coparcenary by elevating a daughter to the
position of a coparcener. Once a daughter becomes a
coparcener she naturally continues to be a member of the
natal joint family and after marriage she will also be a
member of her marital Joint family.2
3.2.5 In this connection, it is relevant to notice
the observations of Mr.Pataskar made while participating
in the parliamentary debate at the time the Hindu
Succession Bill, 1955 was moved. He said:
"To retain the Mitakshara Joint Family and at
the same time put a daughter on the same
footing as a son with respect to the right by
birth, right of survivorship and the right to
claim partition at any time, will be to provide
for a joint family unknown to the law and
unworkable in practice"3
3.2.6 It was noticed that in the State of Tamil Nadu,
many properties were partitioned between the coparceners
before the Tamil Nadu (Hindu Succession Amendment) Act,
1989 came into force with a view to defeat the
daughter's right to become a coparcener. These were by
and large "fraudulent partitions" which were pre-dated
so that no coparcenary property was available to the
daughter. This malpractice has to be checked thoroughly
otherwise the very objective of the Act, which is to
remove discrimination inherent in the Mitakshara
coparcenary against daughters, stands defeated.
Therefore, though the Tamil Nadu Act received the
President's assent on 15.1.1990 and was published in the
official gazette only on 18.1.1990, the Act provides
that partitions effected contrary to the Act after
25.3.89 will be deemed to be void. The Law Commission's
questionnaire elicited public opinion in this regard and
found that the majority were of the view that such
transactions made just before the enactment of the
proposed legislation should be declared invalid.
3.2.7 Another infirmity of these state enactments is
that they exclude the right of a daughter who was
married prior to the commencement of the Act, from the
coparcenary property, though, the right is available to
a daughter who is married after the coming into force of
the said amendment acts. As a result a married daughter
continues to have her interest in the joint property of
her paternal family, if her marriage has taken place
subsequent to the enactment while the daughter who got
married before the enforcement of the law gets no right
at all in the joint property of her parental family.
Such a discrimination appears to be unfair and illegal.
A recent Supreme Court decisions lends support to this
view. In Savita Samvedi v. Union of India5 it was held
that the distinction between a married and an unmarried
daughter may be unconstitutional. The observations made
by Mr.Justice Punchhi are relevant; " The eligibility of
a married daughter must be placed on par with an
unmarried daughter (for she must have been once in that
state), so as to claim the benefit....."6
3.2.8 The majority of the replies to the Law
Commission's questionnaire are also of the view that
equal rights should be conferred on married and
unmarried daughters. This is also the view with regard
to the dwelling house.7
3.2.9 It is further felt that once a daughter is made
a coparcener on the same footing as a son then her right
as a coparcener should be real in spirit and content.
In that event section 23 of the HSA should be deleted.
Section 23 provides that on the death of a Hindu
intestate, in case of a dwelling house wholly occupied
by members of the joint family, a female heir is not
entitled to demand partition unless the male heirs
choose to do so; it further curtails the right of
residence of a daughter unless she is unmarried or has
been deserted by or has separated from her husband or is
a widow. Section 23 of HSA needs to be deleted
altogether and there is great support for this from
various sections of society while replying to the
questionnaire.
3.2.10 There is also a need for special protection of
a widow's right to reside in the dwelling house. The
family dwelling house should not be alienated without
the widow's consent or without providing her an
alternative accomodation after she has agreed to the
sale of the dwelling house.
3.2.11 The HSA of 1956 give daughters as well as the
widow of a deceased coparcener a share in the interest
of the deceased male coparcenar. However, the four
Hindu Succession (State Amendment) Acts i.e. Andhra
Pradesh, Tamil Nadu, Karnataka and Maharashtra have
conferred equal coparcenary rights on sons and
dauthters; thus preserving the right by birth and
extending it to daughters also in the Mitakshara
Coparcenary. This has the indirect effect of reducing
the widow's successional share. This is because if the
number of coparcenars increase then the interest of the
husband will decrease.
3.2.12 The HSA of 1956 dithered in not abolishing the
very concept of coparcenary which the Act should have
done. But the Hindu Succession (State Amendment) Acts
have confered upon the daughter of a coparcener, the
right to become a coparcener like a son which may affect
the brother-sister relationship. It further appears
that even where daughters have been made coparceners
there is still a reluctance to making her a Karta as the
general male view is that she is incapable of managing
the properties or running the business and is generally
susceptible to the influence of her husband and his
family, if married. This seems to be patently unfair as
women are proving themselves equal to any task and if
women are influenced by their husbands and their
families, men are no less influenced by their wives and
their families.
3.3 Kerala Model
The State of Kerala has abolished the concept
of coparcenary following the recommendation of the Hindu
Law Committee - B.N. Rau Committee (which was entrusted
with the task of framing a Hindu Code Bill). The Kerala
model furthers the unification of Hindu law and P.V.
Kane suporting the recommendation of the Rau Committee
stated:
"And the unification of Hindu Law will be
helped by the abolition of the right by birth
which is the cornerstone of Mitakshara school
and which the draft Hindu code seeks to
abolish."8
3.3.1 The Kerala Joint Family System (Abolition) Act,
1975 (hereinafter known as the Kerala Act) in section
4(i) of the Act lays down that all the members of a
Mitakshara Coparcenary will hold the property as tenants
in common on the day the Act comes into force as if a
partition had taken place and each holding his or her
share separately. The notable feature of the Kerala law
is that it has abolished the traditional Mitakshara
coparcenary and the right by birth. But in Kerala, the
Marumakkattayam, Aliyasantana and Nambudri systems were
also present, some of which were matrilineal and these
joint families were also abolished. The Kerala Model
probably results in maintenance of greater family
harmony and appears to be a fair decision as in Kerala
both matrilineal and patrilineal joint families existed.
If the Joint family was abolished today in the other
states then a deemed partition would take place and
women not being coparceners would get nothing more.
Whereas if they are made coparceners, then they become
equal sharers.
3.3.2 However, one common drawback of both the Kerala
model and the Andhra model is that it fails to protect
the share of the daughter, mother or widow from being
defeated by making a testamentary disposition in favour
of another, or by alienation. This criticism of course
against testamentary disposition can be also used to
disinherit a son. The question whether a restriction
should be placed on the making of testamentary
disposition as in some of the personal laws is another
matter in issue.
3.4 In order to provide women with some better
property rights, four states have dealt with the matter
by virtue of the Hindu Succession (State Amendment) Acts
and Kerala has dealt with it by abolishing the Hindu
Joint Family altogether. This has resulted in two
different models being in existence i.e. the Andhra
model and the Kerala model.
3.5 Recent reports in some newspapers reveal that
the Centre has asked all the states to carry out
suitable amendments in the HSA to confer property rights
on women in a joint family. "The Department of Women
and Child Development has requested various States and
Union Territories to draw up necessary legislature
proposal to amend section 6 of the HSA, 1956 to give
daughters their due share of coparcenary right"9 as
already done by States like Andhra Pradesh, Karnataka,
Maharashtra and Tamil Nadu. It is also indicated
therein that the Kerala Government has taken a stand
that in view of the Kerala Joint family system
(Abolition) Act, 1975, Section 6 of the HSA "does not
operate" in that State.
3.6 The subject matter of the laws of succession
fall in entry 5 of the Concurrent List of the Seventh
Schedule to the Constitution. Therefore, Parliament as
well as the State Legislatures are competent to enact
laws in this area. In case another State brings some
third model of legislation in this field, there is a
likelihood of having still more diversity in the law.
This would result in the directive principles of state
policy not being adhered to which require the State to
endeavour to secure a uniform civil code throughout the
territory of India. If we cannot have that for the
present we should at least have uniformity amongst
Hindus. Accordingly, there is need to have a central
law enacted by Parliament under article 246 of the
Constitution. In such a situation the law made by these
five states would stand repealed to the extent of
repugnancy, unless expressly repealed.
FOOT NOTES
1. The Kerala Joint Family System (Abolition) Act,
1975
The Hindu Succession (Andhra Pradesh Amendment)
Act. 1986
The Hindu Succession (Tamil Nadu Amendment)
Act. 1989
The Hindu Succession (Maharashtra Amendment)
Act. 1994
The Hindu Succession (Karnataka Amendment) Act.
1994
For text of these Acts, See Annexure - IV
2. B.Sivaramayya, "Coparcenary Rights to
Daughters; Constitutional and interpretational
Issues," (1997) 3 SCC (J), P.25
3. Lok Sabha Debates p.8014(1955)
4. Infra, Chapter IV, Para 4.10
5. JT (1996) 1 P.680
6. Id, at PP. 683-684 Para 7
7. Infra, Chapter IV, Para 4.7
8. M.P.V. Kane, History of Dharamsastra, (Ancient
and Medieval Religious and Civil Law) (1946)
Vol.III, p.823
9. PTI, "Centre asks States to amend Hindu
Succession Act", The Observer 7.2.2000; see
also The Tribune, 22.3.2000.
CHAPTER - IV
4.1 Questionnaire and its responses
A questionnaire was issued by the Law
Commission to elicit the views of the public regarding
giving of rights to a daughter in the Mitakshara
property of a Hindu undivided family. This
questionnaire consisted of three parts having 21
questions.1 Sixty-Seven respondents have replied to the
questionnaire. 30 respondents are from the profession
of law and the rest comprise sociologists, NGOs etc.
The responses received relating to various issues of the
questionnaire have been analysed and tabulated in
Annexure II. A brief synopsis of the more salient
issues is set out.
4.2 Mitakshara Joint Family to be retained or not
and reasons for doing so?
Out of the 67 respondents, the majority
opposed retention of the Mitakshara
Coparcenary. The two main reasons indicated
for this opposition were, the coparcenary
system discriminates against women and the
legislative changes have already eroded the
utility of the coparcenary system. The few who
favoured its retention were of the view that it
protects the financially weaker members of the
family, gives better rights to males and helps
in agriculture and business activities of the
family.
4.3 Steps to be taken to remove gender
discrimination
However, the majority of the respondents
suggested that, even if, the Mitakshara
Coparcenary is retained, though it would be
better if it were done away with the gender
bias in HSA should be removed. Consequently,
they wanted a daughter to be given the right by
birth to become a coparcener like the son.
4.4 Daughter becoming a Karta in the Joint Family
in case Mitakshara Joint Family is retained.
About half the respondents wanted the
daughter to become a Karta in the Joint Family
if the Mitakshara Joint Family is retained.
4.5 From what period should the Act (when passed)
be applicable?
Opinion on this issue was clearly divided
and only 11 respondents favoured giving
retrospective effect, from 10 to 15 years prior
to the passing of the Act; 14 were for
providing protection to the purchasers who had
bought the property in good faith; 12
respondents were in favour of not affecting the
vested rights and some respondents did not
answer the querry.
.
4.6 Should the right of coparcenary be confered on
the mother by the proposed legislation?
The majoirty of the respondents favoured
conferring coparcenary right on the mother.
4.7 Should attempts to defeat the proposed
legislation immediately before its enactment by
partition or sales be declared invalid?
The majority of the respondents answered
the question in the affirmative declaring that
such transanctions ought to be totally invalid.
4.8 Right to residence or partition of the Dwelling
House by a daughter
The majority preferred that the law be
amended to provide that partition can be sought
by the female heirs also even if there was only
one ancestral home. On the issue whether
married daughters be given a right of residence
in the dwelling house, the majority favoured
equal treatement for married and unmarried
daughters and some also suggested deletion of
section 23 of HSA altogether.
4.9 Widows right to residence or forbidding sale of
the dwelling house.
A large majority of the respondents, that
is, 61 have expressed themselves in favour of
giving a special protection to a widow's right
to reside in the dwelling house. Other
alternative suggestions made were to declare
that the family dwelling house cannot be
alienated without the widow's consent or
without providing an alternative accommodation
to her after she had agreed to the sale of the
dwelling house, or to confer `Homestead' rights
on the wife/widow like in U.S.A., Canada.
4.10 Inheritance Certificate on death of an
individual by all heirs indicating their share
in the property
The majority wanted that Inheritance
Certificates should be issued but watnted that
to be issued at the lowest rung, i.e. by
Munsif's Courts. They also favoured the
establishment of `Itinerary Courts' for
achieving the said purpose.
4.11 Model to follow for bringing the proposed
legislation
(a) Kerala Model, 1976
(b) Andhra Model, 1986
(c) To amend and recast Section 6 of HAS
(d) To omit Section 6 altogether and add
an explanation to Section 8.
The Commission solicited opinion on the
important question as to which model should be
followed if it were to recommend a new
legislation for the purpose of conferring
rights on daughters. Out of 67 respondents 24
favoured the Andhra Pradesh model and 22
favoured the Kerala Model. Some, however,
favoured the recasting of Section 6 of HSA, and
few others suggested that section 6 be omitted
altogether.
4.12 Placing restriction on the right of
testamentary disposition
The majority favoured imposing restriction
on the right of testamentary disposition. 22
respondents suggested to limit it to one half
of the share in the property and an equal
number suggested to limit it to 1/3rd of the
same.
Chapter V
CONCLUSIONS AND RECOMMENDATIONS
5.1 Conclusions
To suggest suitable reforms to any law, it
is necessary to know the existing provisions of
the law and the mischief sought to be remedied.
In the previous chapters provisions of section
6 of HSA and the various inequities emerging
therefrom have been discussed. In this chapter
the conclusions of our study are enumerated and
thereafter we have made some suggestions.
5.2 Under the Mitakshara system, joint family
property devolves by survivorship within the
coparcenary. Mitakshara Law also recognises
inheritance by succession but only to property
separately owned by an individual male or
female. (Para 1.3.3)
5.3 Dayabhaga school neither accords right by
birth nor by survivorship though a Joint family
and its coparcenary is recognised. It lays
down only one mode of succession and the same
rules of inheritance apply whether the family
is divided or undivided and whether the
property is ancestral or self-acquired. Sons
and daughters become coparceners only on the
death of the father and get equal rights in the
family property. (Para 1.3.4)
5.4 The framers of the Indian Constitution
took note of the adverse and discriminary
position of women in society and took special
care as per articles 14,15(2)and (3) to prevent
discrimination against women. Part IV of the
Constitution through the Directive Principles
of State Policy further provides that the State
shall endeavour to ensure equality between man
and woman.(para 1.5)
5.5 Despite the Constitution guaranteeing
equality to women there are still many
discriminatory aspects in the law of succession
against a Hindu woman under the Mitakshara
system of Joint family as per section 6 of the
HSA as only males are recognised as
coparceners. (Para 2.4)
5.6 The States of Andhra Pradesh, Tamil Nadu,
Maharashtra and Karnataka have amended the
provisions of HSA effecting changes in the
Mitakshara coparcenary of the Hindu undivided
family. These four states have declared the
daugher to be coparcener. The state of Kerala,
however, has totally ablished the right by
birth and put an end to the Joint Hindu Family
instead of tinkering with the coparcenery. The
consequence of this de-recognition of the
members of the family, irrespective of their
sex, who are governed by Mitakshara Law is that
they become tenants in common of the joint
family property and become full owners of their
share.(paras 3.2 & 3.3.1)
5.7 Recommendations
As a first reaction the Law Commission was
inclined to recommend the adoption of the
Kerala Model in toto as it had abolished the
right by birth of males in the Mitakshara
coparcenary and brought an end to the Joint
Hindu Family. This appeared to be fair to
women as they did not have any right by birth;
but on further examination it became clear that
if the joint Hindu family is abolshed as on
date and there are only male coparceners, then
only they would hold as tenants in common and
women would not get anything more than what
they are already entitled to by inheritance
under section 6 of HSA. So the Commission is
of the view that it would be better to first
make daughters coparceners like sons so that
they would be entitled to and get their shares
on partition or on the death of the male
coparcener and hold thereafter as tenants in
common. We recommend accordingly.
5.7.1 The Andhra Model does not do full justice
to daughters as it denies a daughter, married
before the Act came into force, the right to
become a coparcener. Obviously, this was based
on the assumption that daughters go out of the
family on marriage and thereby cease to be full
members of the family. The Commission wanted
to do away with this distinction between
married and unmarried daughters, but after a
great deal of deliberation and agonizing, it
decided, that it should be retained as a
married daughter has already received gifts at
the time of marriage which though not
commensurate with the son's share is often
quite substantial. Keeping this in mind the
distinction between daughters already married
before the commencment of the Act and those
married thereafter appears to be reasonable and
further would prevent heart-burning and tension
in the family. A daughter who is married after
the commencement of the Act will have already
become a coparcener and entitled to her share
in the ancestral property so she may not
receive any substantial family gifts at the
time of her marriage. Hopefully, this will
result in the death of the evil dowry system.
5.7.2 The Kerala Act abrogated the doctrine of
pious obligation of the son whereas the Andhra
Model and others which conferred coparcenary
rights on unmarried daughters are silent in
this regard except that the daughter as a
coparcener is bound by the common liabilities
and presumably can become a karta in the Joint
family. We recommend the abrogation of the
doctrine of pious obligation and that the
daughter be a coparcener in the full sense.
5.7.3 Consequently, as above indicated, we have
recommended a combination of the Andhra and
Kerala Models. We are of the view that this
synthesis is in keeping with justice, equity
and family harmony.
5.7.4 We are also of the view that Section 23 of
HSA which places restrictions on the daughter
to claim partition of the dwelling house should
be deleted altogether. We recommend
accordingly.
5.7.5 As noticed earlier quite often fathers
will away their property so that the daughter
does not get a share even in his self-acquired
property. Apart from this, quite often persons
will away their property to people who are not
relatives, thus totally depriving the children
and legal heirs who have a legitimate
expectation. Consequently, there has been a
strong demand for placing a restriction on the
right of testamentary disposition. But after
due deliberation the Commission is not inclined
to the placing of any restrictions on the right
of a Hindu deceased to will away property.
5.8 Accordingly, we have drafted a Bill called
the Hindu Succession (Amendment) Bill, 2000 so
that the recommendations made by us are
hopefully implemented with speed by the
government. This Bill has been annexed as
Appendix 'A'
(JUSTICE B.P. JEEVAN REDDY)(RETD)
CHAIRMAN
(MS JUSTICE LEILA SETH)(RETD)(DR.N.M.GHATATE)(MR.T.K. VISHWANATHAN)
MEMBER MEMBER MEMBER - SECRETARY
DATED: 4.5.2000
(Appendix A)
THE HINDU SUCCESSION (AMENDMENT) BILL, 2000
A
Bill
further to amend the Hindu Succession Act, 1956.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-
1. Short title extent and commencement.- (1) This Act may be called the Hindu Succession (Amendment) Act, 2000.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
2 . Substitution of new section for section 6 of Act 30 of 1956.- In the Hindu Succession Act, 1956, (hereinafter referred to as the principal Act) for section 6 the following section shall be substituted, namely:-
“6. Daughter’s right to be coparcener by birth and devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2000, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener;
(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 and disabilities 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:
Provided that nothing contained in this sub-section shall apply to a daughter married before the commencement of the Hindu Succession (Amendment) Act, 2000.
(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 will or other testamentary disposition.
(3) When a male Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2000, 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 purpose 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, 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 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, 2000, 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, 2000 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 2000.
(5) Nothing contained in this section shall apply to a partition which has been effected
before the date of the commencement of the Hindu Succession (Amendment) Act, 2000”.
3. Omission of section 23 of the principal Act.- In the principal Act, section 23 shall be omitted.
ANNEXURE - II
ANALYSIS OF THE QUESTIONNAIRE OF
LAW COMMISSION
The Law Commission's questionnaire is divided
into three parts. Part I deals with information about
the respondent; part II elicits respondent views on
issues relating to various aspects and impact of
coparcenary and lastly part II invites comments from the
respondents. The respondents were asked to answer in yes
and no and were given several choices. Sixty Seven
respondents had replied to the questionnaire. 30
respondents were mainly from the Department of Law and
rest were either advocates, sociologists or NGOs etc.
The responses are indicated below:
1. Mitakshara Joint Family to be retained or not?
Out of the 67 respondents, 49 opposed its
retention and 17 favoured it and one did not
reply (vide Q.1).
2. Reasons favouring retention of Mitakshara
Coparcenary
The respondents favouring retention have
done so mainly for the reason that it protects
the financially weaker members and gives better
rights to males as per parts(b) and (a) of Q.2.
3. Reasons negativating the retention of Mitakshara
Joint Family
The respondents were asked to give any of
the following grounds as per Q.3 in case they
chose to negative the retention of Mitakshara
System - (a) the changes would affect harmony in
the Family; (b) that legislative changes have
already eroded the utility of the coparcenary
system; (c) that it would have a detrimental
effect on the running of family business; (d)
that idle members of a joint family prosper at
the expense of the hard working members and (e)
that coparcenary system discriminates against
women.
33 respondents preferred part(e); 21
part(b); 12 part(a); 8 part(d) and 29 favoured
more than one part.
4. Steps to be taken to remove gender
discrimination
The Law Commission suggested two
alternative choices in Q.4 to remove gender
discrimination.
The majority that is, 35 respondents,
favoured part(b) which stated that Mitakshara
Coparcenary should be retained but the gender
bias to remove by conferring upon daughters the
right to become a coparcener like a son; 22
respondents favoured part(a), that is, to
abolish the coparcenary right by birth.
5. Daughter becoming a Karta in the Joint Family.
33 respondents preferring the daughter to
become Karta in the Joint Family of Mitakshara
Joint Family is retained; 10 respondents
negativated it and 8 did not reply as per Q.5.
It may be noted that this question is
directly relevant to Q.No.1, where only 17
respondents favoured the retention of Mitakshara
system whereas it may be seen that 33
respondents have preferred the daughter becoming
Karta in the Joint Family if Joint Family is
retained.
Several choices are listed in Q.6 for
negativating the daughters becoming a Karta such
as - (a) women are incapable of managing
properties or agriculture; (b) they are
incapaable of running a business; (c) once
married they move away from their families; and
(d) they are susceptible to the influences of
the husband or his family; (e) other reasons.
11 respondents opted for part(c); 5 for
part(d) and 13 did not reply to this question.
6. Conferring equal rights upon married & unmarried
daughters.
36 replies favoured the view that married
daughters should have equal rights in
coparcenary property as per Clause(b); 14 opted
for Clause (a) by limiting this right in favour
of unmarried daughters at the time of passing or
enforcing of the enactment and 8 respondents did
not reply as per Q.7.
7. From what period should the Act (when passed) be
applicable?
21 respondents did not reply; 10 favoured
choice in part (a) that is to give retrospective
effect from 10 to 15 years prior to the passing
of the Act; 15 for part(b) for providing
protection to buyers of property in good faith;
12 respondents were in favour of part(c) for not
affecting the vested rights and 11 opted for
part(a) of Q.8.
8. Should coparcenary right be confered on the
mother of the coparcenary by the proposed
legislation?
51 out of 67 respondents answered in the
affirmative; 5 in the negative and 11 did not
respond to Q.9.
9. The Commission vide Q.10 pointed out that there
may be attempts to defeat the provisions of the
proposed legislation by effecting partitions or
by sales. Should such transactions be declared
invalid before the enactment of the proposed
legislation?
The respondents were asked to choose
between yes or no. The majority, that is, 58
respondents answered the question in the
affirmative; and 7 were against it; and 9 did
not reply.
10. On the question of preference of abolition of
special rules discriminating against daughters
for devolution of agricultural interests.
The majority that is, 54 respondents
answered Q.11 in the affirmative and only 7 were
against it, 6 did not reply.
11. Dwelling House
43 respondents preferred amendment of law
to provide that partition can be sought by the
female heirs also even if there was only one
ancestral home, as in part(a) of Q.13. On the
issue whether married daughters be given a right
of residence in the dwelling house. 39
respondents expressed themselves in favour of
this cause of action and 24 were against it.
Further, 27 respondents favoured the deletion of
section 23 of HSA altogether and 26 opted for
course of action mentioned in part(b), namely
making section 23 inapplicable to dwelling house
belonging to Hindu female intestates in respect
to Q.14 and others did not reply.
The majority of the respondents, that is,
61 have expressed themselves in favour of
special protection to widow's right to reside in
the dwelling house as per Q.15. ; 26
respondents have opted for the course of action
in part (b) of Q.16 by declaring that family
dwelling house cannot be alienated without
widow's consent or without providing an
alternative accommodation to her after she had
agreed to the sale of the dwelling house; 29
respondents opted for part(a), to confer
`Homestead' rights on the wife/widow like in
U.S.A., Canada , and few have not replied to the
question.
12. Inheritance Certificate on death of an
individual by all heirs indicating their share
in the property
In answer to Q. No. 17, the majority of
the respondents that is 55 favoured the taking
of an inheritance certificate by all heirs.
Question of authority to be conferred, upon the
issue of `Inheritance Certificate'
50 respondents stated that `District
Munsif's Courts' should alone be conferred the
authority to issue such Inheritance Certificates
and in response to Q.18, all the 49 respondents
have favoured the establishment of `Itinerary
Courts' for achieving the said purpose as per
Q.19.
13. Model to follow for bringing the proposed
legislation
(a) Kerala Model, 1976
(b) Andhra Model, 1986
(c) To amend and recast Section 6 of HSA
(d) To omit Section 6 altogether and add
an explanation to Section 8.
The Commission solicited opinions on the
important question as to which model should be
followed if it were to recommend a new
legislation for the purpose of conferring rights
on daughters. Out of 67 respondents 23
respondents favoured the Andhra Pradesh model;
22 respondents favoured the Kerala Model; 6
respondents favoured the recasting of Section 6
of HSA as per part(c) and 7 favoured part(d) for
omitting section 6 altogether as per Q.20.
14. Placing restriction on the Right of Testamentary
disposition
44 respondents favoured imposing restrictions on
the right of testamentary disposition but only
21 stated to limit it to one half of the share
and 22 to 1/3; and 19 respondnets did not favour
imposing restrictions on such a right vide Q.21.
The last question invited the comments from the
respondents
Any other comments
1. Only 35 respondents made general comments in
response to Q.22. Their general view was that
the concept of Hindu Mitakshara was not
acceptable because it discriminated between
males and females. If females were made part of
Mitakshara Coparcenary, it would reduce gender
inequality to a considerable extent. For this
purpose, Section 6 of the HSA should be amended
by Parliament and so amended should be
implemented uniformly throughout India.
2. Stpes must be take to protect the interests of a
wife/widow.
3. Restrictions on testamentary disposition should
be imposed at least to the extent of half of the
property.
4. A few respondents also suggested the formulation
of a Uniform Civil Code.
One of the respondents asked the Commission to
make an empirical study of the issue and not to lightly
decide to discard the existing system of Hindu Joint
Family/HUF which was based on mutual love, affection and
compassion and family as a means of fulfilling physical
and economic needs. According to this respondent, there
was no gender bias against females under section 6 of the
HSA. In fact, female inherits from the fathers's family
as well as husbands family under Sections 6 and 14 of
HSA. She inherited from two families in four capacities.
Compared to this, the male inherited only from one family
and in one capacity i.e. as a son (or grandson or great
grandson). Thus the bias is in favour of the female.
Annexure - III
WORKING PAPER ON
COPARCENARY RIGHTS TO DAUGHTERS UNDER THE HINDU LAW
Under ancient Hindu Society, a woman was
considered to be of low social status and treated as a
dependent with barely any property rights. As per the
text of Baudhayana, women had no place in the Hindu scheme
of inheritance and "Females were devoid of powers and
incompetent to inherit." But by virtue of special texts
specified female heirs were given the right to inherit.
The Dayabhaga law and the Benaras and Mithila
sub-schools of Mitakashra law recognized five females
relations as being entitled to inherit namely, widow
daughter, mother, paternal grandmother, and paternal
great-grandmother and the Madras and Bombay sub-schools
recognised the heritable capacity of a larger number of
female heirs.1
Sometimes the laws themselves discriminated
against women. This was particularly true in the sphere
of family laws in India which are "Personal Laws", that is
the law applicable to a person on the basis of his/her
religion. Some of these personal laws exhibit strong
features of discrimination against women.
During the British period social reform movements
raised the issue of amelioration of women's position in
society. The earliest legislation bringing females into
the scheme of inheritance is the Hindu Law of Inheritance
Act, 1929. This Act, conferred inheritance rights on
three female heirs i.e. son's daughter, daughter's
daughters and sister (thereby creating a limited
restriction on the rule of survivorship). During this
period another landmark legislation conferring ownership
right on a woman was the Hindu Women's Right to Property
Act XVIII of 1937. This Act brought about revolutionary
changes in the Hindu Law of all schools, and affected not
only the law of coparcenary but also the law of partition,
alienation of property, inheritance and adoption.2
The Act of 1937 enabled the widow to succeed along
with the son and to take the same share as the son. This
widow is not a coparcener even though she posses a right
akin to coparcenary interest in the property and is a
member of the Joint Family. However, under the Act, the
widow was entitled only to a limited estate in the
property of the deceased with a right to claim partition.
A daughter had virtually no inheritance rights at all.
But, both enactments largely left untouched the basic
features of discrimination against women and were
subsequently repealed.
The framers of our Constitution were aware of the
low position of a woman in society and they took special
care to ensure that the state takes positive steps to give
her equal status. Articles 14, 15(2) and (3) and 16 of
the Constitution of India not only inhibit discrimination
against women but in appropriate circumstances provide a
free hand to the State to provide protective
discrimination in favour of women. These provisions are
part of the Fundamental Rights guaranteed by the
Constitution.
Part IV of the Constitution contains the Directive
Principles which are no less fundamental in the governance
of the State to ensure equality between man and woman such
as equal pay for equal work. Despite these provisions for
ensuring equal status, unfortunately a woman is still not
only neglected in her own natal family but also the family
she marries into because of certain laws and attitudes.
After the advent of the Constitution, the first
law made at the central level pertaining to property and
inheritance concerning Hindus was the Hindu Succession
Act, 1956 (hereinafter called the HSA). This Act came
into force on 17th June, 1956. The HSA lays down a
uniform and comprehensive system of inheritance and aplies
inter-alia to persons governed by Mitakshara and Dayabhaga
Schools as also to those in certain parts of southern
India who were previously governed by the Murumakkattayan,
Aliyasantana and Nambudri Systems of Hindu Law. The Act
applies to any person who is a Hindu by religion in any of
its forms or developments or a follower of the Brahmo
Prarthana or Arya Samaj or to any person who is a Budhist,
Jain or Sikh by religion. In the case of a testamentary
disposition this Act shall not apply and the interest of
the deceased would be governed by the Indian Succession
Act, 1925.
There is no doubt that it reformed the Hindu
personal law and gave women greater property rights,
allowing women full ownership rights instead of limited
rights in the property they inherited from their husbands
under Section 14 with a fresh stock of descent under
sections 15 and 16 of this Act. Daughters were also
granted property rights in their fathers' estate. The
attempt to bring about reforms and a comprehensive
codification of Hindu Law was resisted by the orthodox
sections of Hindus. However, the then Prime Minister Pt.
Jawaher Lal Nehru who was unequivocally committed to carry
out these reforms suggested, in order to blunt the edge of
opposition, that piecemeal legislation be undertaken to
substantially remove the disparities and disabilities
suffered by the Hindu women. Consequently it was possible
to bring into force, the Hindu Marriage Act, 1955; the
Hindu Adoptions and Maintenance Act, 1956, the Hindu
Minority and Guardianship Act, 1956; and The Hindu
Succession Act, 1956.
Under the HSA if a Hindu male dies intestate, all
his separate or self-acquired property devolves in equal
shares on his sons, daughters, widow and mother as
specified class I heirs.
However, the devolution of interest to coparcenary
property is set out in section 6 -
Section 6 of the HSA dealing with devolution of
interest to coparcenary property states-
"When a male Hindu dies after the
commencement of this Act, having at the time 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 devlove 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 the his death, irrespective of
whether he was entitled to claim partition of or
not.
Explanation 2,-- Nothing contained in the
proviso to his section shall be construed as
enabling a person who has separated himself from
the coparcenary before the death of the deceased
or any his heirs to claim on intestacy a share in
the interest referred to therein.
The provision above noted indicates when a male
Hindu dies having at the time of his death an interest in
a Mitakshara coparcenary property and is survived by a
female relative specified in class I of the Schedule of
the Act or a male relative specified in that class who
claims through such female relative, the interest of the
deceased in the Mitakshara coaprcenary property shal
devolve by testamentary or intestate succession and not by
survivorship. In the absence of this event his interest
would have devolved by survivorship on the living members
of the coparcenary.
The Act lays specific emphasis on the "interest of
the deceased" and provides that 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. The Supreme Court in Gurupada v.
Heerabai3 reaffirming in State v. Narayanaro4 had
examined Section 6 of the HSA and is of the view above
expressed.
Section 6 of the HSA contemplates the existence of
a coparcenary consisting of male members who have an
interest by birth in the joint family property. At no
time before partition can it be predicted that he is
entitled to so much share (one half or one fourth or one
third) in the joint family property. Nor can he say that
such and such items of property belong to him, even if the
properties are in the possession or use. Until partition
takes place this is an unpredictable and fluctuating
interest which may be enlarged by deaths and diminished by
births in the family. According to the noted Hindu Law
Jurist Mayne, every coparcener has a right to be in joint
possession and enjoyment of the joint family property and
this is expressed by saying that there is both community
of interest and unity of possession.
Every coparcener has a right to be maintained
including a right to marriage expenses being defrayed out
of the joint family funds and every coparcener is bound by
the alienation made by the Karta for legal necessity or
benefit of the estate and by legitimate acts of management
of the Karta; every coparcener has a right to object to
and challenge alienations made without his consent or made
without legal necessity; and every coparcener has a right
of partition and survivorship.5
A widow or daugher on the death of her husband/
father cannot claim to be a survivor as she is not a
coparcener recognised under the Act.
Desipte constitutional guarantee for not only
ensuring equality to women, we find that in the sphere of
property rights granted to Hindu women as wives/widows and
daughters, there are still many discriminatory aspects in
the law. When a Woman is maltreated in her husband's
family or there is a demand of dowry, there is huge hue
and cry as the instances of killing by in laws/bride
burning are not unknown in our society.
But the issue here is regarding the discriminatory
treatment given to her even by the members of her own
natal family. In Hindu System, ancestral property has
traditionally been held by a joint Hindu family consisting
of male coparceners. Coparcenary is a narrower body of
persons within a joint family and consists of father,
son's son's and son's son's son. A coparcenary can
consist of a grandfather and grandson, or brothers, or an
uncle and nephew and so on. Thus ancestral property
continues to be governed by a wholly partrilineal regime,
wherein property descends only through the male line as
only the male members of a joint Hindu family have an
interest by birth in the joint or coparcenary property.
Since women could not be coparceners they were not
entitled to any share in the ancestral property by birth.
A son's share in the property of his intestate father
would be in addition to the share he acquired at the time
of birth whereas the share of a daughter/mother/wife,
would only be out of the interest the deceased had in a
coparcenary on his death.
Secondly, the patrilineal assumptions of dominant
male ideology is also reflected in the laws governing a
Hindu female who dies intestate, laws that are markedly
different from those governing Hindu males who die
intestate.6 The property is to devolve first to her
children and husband: secondly, to her husband's heirs;
thirdly to her father's heirs, and lastly, to her mother's
heirs. The provisions of section 15(2) attempt to
guarantee that property continues to be inherited through
the male heir from which it came either back to (her
father's family or back to her husband's family.
The report on the Status of Women in India
(1971-74) reveals that the Hindu Code Bill, 1948, as
amended by the Select Committee had in fact suggested
abolition of the coparcenary i.e. the male right to
property by birth, and its conversion to the the Dayabhaga
system where the daughters get equal shares with the
brothers as there is no right by birth for the sons. But
the traditional resistance was too strong. Further, the
case for a daughter's share is often turned down on the
ground that there is hardly a case of a daughter claiming
equal rights to parental family property in view of the
over-weighing consideration of amity with the family and
social disapproval of such a claim.
Thus the law by excluding the daughters from
participating in coparcenary ownership (merely by reason
of their sex) not only contributed to discrimination
against females but has led to oppression and negation of
her fundamental rights guaranteed by the Constitution. As
such, the State has failed to bring about a suitable
legislation as required by the Constitution. It is law
that can contribute to overcoming this oppression by
creating a legal order that treats females on equal
footing. Legislation that on the face of it discriminates
between a male and a female must be made gender neutral.
Thus, there is little doubt that radical reform of the
Mitakshara law of coparcenary is required so that and
there should be equal distribution of property not only
with respect to the separate or self-acquired property of
the deceased male but also with respect to his undivided
interest in the coparcenary property. This should be
distributed equally among his male and female heirs,
particularly his son and daughter. This will go a one way
in eradicating the evils of the dowry system prevailing in
our society and award a status of honour and dignity to a
daughter at least in her family of birth.
It is a matter of satisfaction to note that five
states in India, namely, Kerala, Kanataka, Tamil Nadu,
Andhra Pradesh and Maharashtra have taken cognisance of
the fact that social justice requires a woman should be
treated equally both in the economic and social sphere.
Consequently these states being of the view that the
exclusion of daughters from participating in coparcenary
ownership merely by reason of their sex was unjust,
brought about a change in respect of Mitakshara
coparcenary property and extended the right by birth in
coparcenary property to the daughters also. Improving
their economic conditions and social status by giving them
right by birth equal to that of sons was a long felt
social need as it would eradicate the baneful system of
dowry by positive measures. The practice of dowry has
emerged as a major social evil in contemporary India. The
gravity of the social evil is reflected all over in our
country. The Dowry Prohibition Act of 1961 passed with
the ostensible idea of checking the evil has almost proved
to be an ineffective legislation.
As per the law passed by four of these states,
(Kerala law being different) in a Joint Hindu Family
governed by Mitakshara Law, the daughter of a coparcener
by birth becomes a coparcener in her own right in the same
manner as the son and has the same rights in the
coparcenary property as she would have had if she had been
a son, inclusive of the right to claim survivorship, and
is subject to the same liabilities and disabilities in
respect thereto as the son. Of course, this change in the
law is prospective and daughters married prior to the
coming into force of the law have been excluded. A list
of the legislation passed by the five states is set out
below and the legislation is annexed as Annexed `IV'.
(1) The Joint Hindu Family System (Abolition) Act,
1975, Kerala.
(2) The Hindu Succession (Andhra Pradesh Amendment)
Act, 1986
(3) The Hindu Succession (Tamil Nadu Amendment)
Act,1989.
(4) The Hindu Succession (Karnataka Amendment)
Act,1994.
(5) The Hindu Succession (Maharashtra Amendment) Act,
1994
One redeeming feature of these State enactments is
that they are more or less couched in the same language,
though the Kerala model is different. The Kerala Joint
Hindu Family System (Abolition) Act, 1975 abolished the
right of birth of males under the Mitakshara as well as
the Marumakkattayam law, following the Report of the Hindu
Committee in connection with the Hindu Code Bill Section 3
of the Kerala Act States that after its commencement, a
right to claim any interest in any property of an
ancestor, during his or her life time founded on the mere
fact that the claimant was born in the family of the
ancestor, shall not be recognised. Thus the Act is wholly
prospective and fails to confirm rights on daughters in
the existing coparcenary property unlike the Andhra model
legislation. Section 4(i) of the Kerala Act lays down
that all the members of a Mitakshara coparcenary will hold
the property as tenants-in-common on the day the Act comes
into force as if a partition had taken place and each
holding his or her share separately.7 The major drawback
in the legislation is that it fails to protect the share
of the daughter from being defeated by the making of a
testamentary or other disposition.
The approach of the other State Legislature is
strikingly different. It elevates a daughter to the
position of a coparcener in a Mitakshara coparcenary i.e.
succession by survivorship.
The above mentioned state amendments to the Hindu
Succession Act 1956, thus considerably altered the concept
of the Mitakshara coparcenary. Once a daughter becomes a
coparcener she continues to be member of the natal joint
family even after her marriage. This has introduced a far
reaching change in the law of a joint family. Section
29-A of the Andhra Pradesh, Tamil Nadu and Maharashtra
Acts and Section 6A of the Karnataka Act states that in a
Joint Hindu Family governed by Mitakshara law, the
daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as a son
and have the same rights in the coparcenary property as
she would have had if she had been a son inclusive of the
right to claim by survivorship; and shall be subject to
the same liabilities and disabilities in respect thereto
as a son.
Under the Amending Acts the eldest daughter like a
son will be entitled to be a Karta of the Joint Family,
and will by virtue of that position exercise the right to
spend the income for joint family purposes and alienate
the joint family properties for legal necessity or benefit
of the estate. However, under the Shastric Law, a
daughter on marriage ceases to be a member of the parental
family, but the Amending Acts have changed her position,
which is quite alien to Hindu patriarchal notions. Though
her position as defacto manager was recognized when
mothers acted as guardians of their minor sons after the
death of their husbands, the dejure conferment of the
right eluded her.
The aspect of succession and joint family fall
under the concurrent list entry 5 contained in the Seventh
Schedule of the Constitution and both the Centre as well
as the States can legislate in this field. It is also
noted that the five States mentioned above have passed
their enactments with the assent of the President. In
fact, it would appear to us that instead of having
piecemeal legislations for effecting amendments in the
Hindu Succession Act by the states, there is a strong case
for a uniform civil code in this area governing atleast
Hindu Society and providing equality in the family the
child is born into, irrespective of the sex. Our
suggestion would tackle not only the evils of dowry but
also the longing for a son and would promote the small
family norm and check the population explosion.
However, the State Amendments to the HSA have
given rise to various questions which need to be answered
before a uniform law is brought for all the States.
First, the Amendment has excluded the right of a daughter
from the coparcenary property, who was married prior to
the commencement of the amending Act. The provision is
similar in all the Acts and the Karnataka provision is set
out as under:
6(d) "Nothing in clause (b) shall apply to a daughter
married prior to or to a partition which had been
effected before the commencement of Hindu
Succession (Karnataka Amendment) Act, 1994."
The reasons for exclusion of the already married
daughter appear to be sociological and the fact that dowry
might have been given at the time of marriage. This dowry
might in some cases have included immovable and movable
property apart from jewellery. But there may be many
cases where nothing has been given and there does not
appear to be any cogent reason for discriminating between
a married and an unmarried daughter. Excluding a daughter
married before the date of commencement of the Amending
Acts is wrong in our opinion as all daughters must be
treated equally, and at par with sons. By denying a
married daughter equal rights in coparcenary property, a
large number of females are getting left out of the
benefit.
A recent Supreme Court decision in Savita Samvedi
v. Union of India8 lends support to the view that a
distinction between a married and an unmarried daughter
will be unconstitutional. The Supreme Court held that the
circular in fettering the choice of a retiring employee to
nominate a married daughter is "wholly unfair,
unreasonable and gender biased" and liable to be struck
down under Article 14 of the Constitution. Referring to
the distinction drawn by the circular between a married
and an unmarried daughter, Punchhi, J. observed: "The
eligibility of a married daughter must be placed at a par
with an unmarried daughter (for she too must have been
once in that State) so as to claim the benefit....."
The Preamble to the Amending Acts indicates the
objective as the removal of discrimination against
daughters inherent in the mitakshare coparcenary and the
eradication of the baneful system of dowry by positive
measures thus ameliorating the condition of women in the
human society. This is only a subsidiary or collateral
objective and it cannotg be said that the classification
drawn by the Amending Acts bears a rational relationship
to the objective sought to be achieved.9
Thus cl.(d) of S.6A of the Karnataka Act and
clause (iv) of 29A of the other three Acts should be
deleted and the main object of the Acts should be only to
remove discrimination inherent in the Mitakshara
coparcenary against daughters both married and unmarried.
Another reason for having an all India legislation
is that if the Joint Family has properties in two states,
one which is governed by the Amending Act and the other
not so governed, it may result in two Kartas, one a
daughter and the other a son. Difficulties pertaining to
territorial application of Amending Act and the Lex Situs
principle will also arise. Thus is the need for an all
India Act or Uniform Civil Code more immediate.
It is important to notice what the impact of
Section 6-A of the Karnataka Act and Section 29-A of the
other three Acts would be on Section 23 of the Hindu
Seccession Act, 1956. Section 23 of the Hindu Succession
Act 1956 provides that on the death of Hindu intestate in
case of a dwelling house wholly occupied by members of the
joint family, a female heir is not entitled to demand
partition unless the male heir chooses to do so; and
secondly it curtails even the right of residence of a
daughter by stating that where such female heir is
daughter, she shall be entitled to a right of residence in
the dwelling house only if she is unmarried or has been
deserted by or separated from her husband or is a
widow."10 Whether these restrictions will be operative in
the case of female coparceners will have to be considered
and we must focus on the interpretation of the words
`Hindu intestate `and' `heirs' exclude coparceners and
coparcenary interests from their scope. Section 6 of the
Hindu Succession Act retains the rule of devolution of
undivided coparcenary interest by survivorship in spite of
the significant change introduced in it. Under the Act it
should be clarified that female coparcener will have equal
rights as males in the matter of asking for partitioning
and allotment to them of their share in coparcenary
property. Thus Section 23 from the HSA may need to be
deleted altogether.
It is noteworthy, that there is hardly a
case of a daughter claiming equal rights to property in
the parental family, even though her dowry may not be
equal to the son's share. This is due mainly to
overweighing consideration of modesty and desire for amity
and the fear of social disapproval. A study prepared for
the Ministry of Education and Social Welfare on the
succession rights of women in Andhra Pradesh, is very
revealing in this regard.11 It observed that 38 per cent
of women in Godavari and 12 per cent of women in Krishna
districts reported considerations of family prestige, 27
percent of the respondents in both the districts reported
consideration of getting bad name among relatives and
others, for not taking resort to courts of law in getting
their due share in property. Cost of litigation,
complicated the procedures of law and uneconomic nature of
the deal in terms of the cost involved in property are the
other reasons stated by the respondents.
In view of the limited assertion of equal rights
to property by women, it is necesary to understand that if
equality exists only as a phenomenon outside the awareness
and approval of the majority of the people, it cannot be
realzed by a section of women socialized in tradtions of
inequality. Thus there is need to social awareness and to
educate people to change their attitude towards the
concept of gender equality. The need of the hour is also
to focus attention on changing the social attitudes in
favour of equality for all by enacting a uniform law.
This is what the Law Commission suggests and we have
attempted to draft a Bill which is annexed.
Bill No. _______ of 1998
An Act to amend the Hindu Succession Act, 1956.
Whereas the Constitution of India has proclaimed
equality before the law as a Fundamental Right;
And Whereas the exclusion of the daughter from
participation in coparcenary ownership merely by reason
of her sex is contrary thereto;
And Whereas such exclusion of the daughter has
also led to the creation of the socially pernicious dowry
system with its attendant social evils.
And Whereas this baneful system of dowry has to
be eradicated by positive measures which will
simultaneously ameliorate the condition of women in the
Hindu society;
Be it enacted by Parliament in the fifty-first
year of the Republic of India as follows:
Short Title, Extent and Commencement
1.(1) This Act may be called the Hindu Succession
(Amendment) Act, 2000.
(2) It extends to the whole of India except Jammu
and Kashmir;
(3) It shall be deemed to have come into force on
the day of ________________, 1998
After Section 6 of the Hindu Succession Act 1956 the
following sections shall be inserted by virtue of the
Hindu Succession (Amendment) Act, 1998 (..... of 1998).
6A. Notwithstanding anything contained in section 6
of this Act -
Equal rights to daughters in coparcenary
property
(i) in a Joint Hindu family governed by Mitakshara
Law, the daughter of a coparcener shall by birth
become a coparcener in her own right in the same
manner as the son and have the same rights in
the coparcenary property as she would have had
if she had been a son, inclusive of the right to
claim by survivorship, and shall be subject to
the same liabilities and disabilities in respect
thereto as the son;
(ii) at a partition in such a joint Hindu Family the
coparcenary property shall be so divided as to
allot to a daughter the same share as is
allotable to a son.
Provided that the share which a
pre-deceased son or a pre-deceased daughter
would have got at the partition if he or she had
been alive at the time of the partition shall be
allotted to the surviving child of such
predeceased son or of such pre-deceased
daughter;
Provided further that the share allotable
to the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, if such child had
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 of the
pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes
entitled by virtue of the provisions of clause
(i) shall be held by her with the incidents of
coparcenary ownership and shall be regarded
notwithstanding anything contained in this Bill
or anyother law for the time being in force, as
property capable of being disposed of by her by
will or other testamentary disposition;
6B. Interest to devolve by survivorship on death
When a female Hindu dies after the commencement
of the Hindu Succession (Amendment) Act, 2000 having
at the time of her death an interest in a Mitakshara
coparcenary property, her interest in the property
shall devolve by survivorship as in the case of males
upon the surviving members of the coparcenary and not
in accordance this Act.
Provided that if the deceased had left any child
or child of a pre-deceased child 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 female Hindu Mitakshara coparcener shall
be deemed to be the share in the property that would
have been allotted to her if a partition of the
property had taken place immediately before her death
irrespective of whether she was entitled to claim
partition or not.
Nothing contained in the proviso to this section
shall be construed as enabling a person who, before
the death of deceased, has separated himself or
herself from the coparcenary, or any of his or her
heirs to claim on intestacy a share in the interest
referred to therein.
6C. Preferential right to acquire property in
certain cases
(1) Where, after the commencement of the Hindu
Succession (Amendment) Act, 2000 an interest in
any immovable property of an intestate or in any
business carried on by him or her, whether
solely or in conjunction with others devolves
under section 6A or section 6B upon two or more
heirs and any one of such heirs proposes to
transfer his or her interest in the property or
business, the other heirs shall have
preferential right to acquire the interest
proposed to be transferred.
(2) The consideration for which any interest
in the property of the deceased may be
transferred under this section shall in the
absence of any agreement between the parties, be
determined by the court, on application being
made to it in this behalf, and if any person
proposing to acquire the interest is not willing
to acquire it for the consideration so
determined, such person shall be liable to pay
all costs of or incidential to the application.
(3) If there are two or more heirs, proposing
to acquire any interest under this section, that
heir who offers the highest consideration for
the transfer shall be preferred.
Explanation:- In this section `court' means the court
within the limits of whose jurisdiction the immovable
property is situate or the business is carried on, and
includes any other court which the State Government
may, by notification in the official Gazette specify
in this behalf.
FOOT NOTE
1. M. Indira Devi, "Woman's Assertion of Legal
Rights to Ownership of Property" p.168 in Women
AND Few, Contemporary Problems, (1994) edt by L.
Sarkar & B. Sivaramayya/
2 Mayne, Treaties on Hindu Law & Usage, 14th
Edition ed. by Alladi Kuppuswami, (1996)
3. AIR 1978 SC 1239
4. AIR 1985 SC 716
5. Ibid.
6. Ratna Kapur and Brenda Cossman, Feminist
Engagements with Law in India (1996)
7. B. Sivaramayya, "Coparcenary Rights to
Daughters Constitutional and interpretational
issues" (1997) 3 SCC(J), page 25.
8. (1996) 2 SCC 380
9. Ibid
10. Proviso to section 23 of HSA.
11. Department of Cooperation & Applied Economics,
Andhra University, Agricultural Growth Rural
Development and Poverty selected writings of G.
Parthasarthy 497 (1998 as noted in Supra, n 1.
ANNEXURE - IV
The Kerala Joint Hindu Family System
(Abolition) Act, 1975*
(Act 30 of 1976 amended by Act 15 of 1978)
----------
An Act to abolish the joint family system among
Hindus in the state of Kerala.
Preamble:- Whereas it is expedient to abolish the
joint family system among Hindus in the state of
Kerala
Be it enacted in the Twenty-Sixth Year of the
Republic of India as follows:-
1. Short title, extent and commencement -
(1) The Act may be called the Kerala
Joint Hindu Family System (Abolition)
Act, 1975.
(2) It extends to the whole State of
Kerala.
** (3) It shall come into force on such date
as the Government may, by notification
the Gazette, appoint.
2. Definition - In this Act, "joint Hindu family"
means any Hindu family with community of property and
includes-
*The above Act received the assent of the
President on the 10th day of August, Kerala Gazette,
Extraordinary No.484, dated 17.8.1976.
**The Act came into force on 1-12-1976 as per
notification No. 17469/Leg (A)2/69 Law, dated 18.11.76
S.R.O. 1185/76. K.G.No. 46, dated 23.11.1976.
(1) a tarward or tavazhi governed by
the Madras Marumakkattayam Act, 1932, the
Travancore Nayar Act, II of 1100, the
Travancore Ezhava Act III of 1100, the
Nanjinad Vellala Act of 1101, the
Travancore kshatriya Act of 1108, the
Travancore krishnavaka Marumakkattayam
Act, VII of 1115, the Cochin Nayar Act
XXXIX of 1113, or the Cochin
Marumakkattayam Act, XXXIII of 1113;
(2) a kutumba or kavaru governed by
Madras Aliyasantana Act, 1949;
(3) an illom governed by the Kerala
Nambudiri Act, 1958; and
(4) an undivided Hindu family
governed by the Mitakshara law.
3. Birth in family not to give rise to right
in property -
On and after the commencement of
this Act no right to claim any interest
in any property of an ancestor during his
or her lifetime which is founded on the
mere fact that the claimant was born in
the family of the ancestor shall be
recognized in any court.
(4) Joint tenancy to be replaced by tenancy
in common --
(1) All members of an undivided Hindu
family governed by the Mitakshara law
holding any coparcenary property on the
day this Act comes into force shall with
effect from that day, be deemed to hold
it as tenants-in-common as if a partition
had taken place among all the members of
that undivided Hindu family as respects
such property and as if each one of them
is holding his or her share separately as
full owner thereof;
Provided that nothing in this sub-section
shall affect the right to maintenance or
the right to marriage or funeral expenses
out of the coparcenary property or the
right to residence, if any, if the
members of an undivided Hindu family,
other than persons who have become
entitled to hold their shares separately,
& any such right can be enforced if this
Act had not been passed.
(2) All members of a joint Hindu
family, other than an undivided Hindu
family referred to in sub-section (1),
holding any joint family property on the
day of this Act comes into force, shall,
with effect from that day be deemed to
hold it as tenants-in-common, as if a
partition of such property per capita had
taken place among all the members of the
family living on the day aforesaid,
whether such members were entitled to
claim such partition or not under the law
applicable to them, and as i.e. each one
of the members is holding his or her
share separately as full owner thereof.
NOTES
By virtue of this Act the joint family
system of the Marumakkattayam Tarwad stood
abolished by the operation of law and the
properties of the joint family are held
thereafter by the members of the joiint family as
tenants-in-common as if there was a partition.1
If under the custom, a female is entitled
to ask for partition or is granted a share in the
property in lieu of her right to maintenance, or
marriage expenses, then only she is entitled to a
share in the property.2 Where there was a
partition in a joint family consisting of the
asessee, his wife and son prior to the coming
into force of this Act, it was held that the
property held by the assessee was his individual
property and the wife is not entitled to any
share in it. Therefore, the entire income from
the property in the hands of the assessee is to
be assessed in his hand as an individual.3
After passing of Joint Family Abolition
Act, 1975, section 17 of the Hindu Succession Act
does not become inoperative in respect of persons
living on 18.6.1956 (Date of coming into force of
Hindu Succession Act) and who died after the
passing of Joint Family Abolition Act on
1.12.1976. It also does not become inoperative
in respect of persons who were born on or after
18.6.1956 but before 1.12.1976 and who died on or
after that date.
5. Rule of pious obligations of Hindu son
abrogated.-
(1) After the commencement of this
Act, no court shall, save as provided in
sub-sections (2) recognize 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 or any alienation of
property in respect of or in satisfaction
of any such debt on the ground of the
pious obligation under the Hindu law, the
son, grandson or great grandson to
discharge any such debt.
(2) In the case of any debt
contracted before the commencement of
this Act, nothing contained in
sub-section(1) 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 if this Act
had not been passed.
Explanation- For the purposes of sub-section
(2), 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 this Act.
The expression "Hindu Law" in this section has to
be understood in a broad sense as including
Marumakkattayam Law which is also part of Hindu
Law.4
6. Liability of members of joint Hindu
family for debts contracted before Act
not affected -
Where a debt binding on a joint
Hindu family has been contracted before
the commencement of this Act by Karnavan,
Yejman, Manager or Karta, as the case may
be, of the family, nothing herein
contained shall affect the liability of
any member of the family to discharge any
such debt and any such liability may be
enforced against all or any of the
members liable, therefore, in the same
manner and to the same extent as it would
have been enforceable if this Act had not
been passed.
7. Repeal.-
(1) Save as otherwise expressly provided
in this Act, any text, rule or
interpretation of Hindu law or any custom
or usage 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.
(2) The Acts mentioned in the schedule,
in so far as they apply to the whole or
any part of the State of Kerala, are
hereby repealed.
8. Proclamation IX of 1124 and Act XVI 1961
to continue in force5
Notwithstanding any thing contained in
this Act or in any other law for the time being
in force, Proclamation (IX of 1124) dated 29th
June, 1949, promulgated by the Maharaja of
Cochin, as amended by the Valiamma Thampuran
Kovilakam Estate and the Palace Fund (Partition)
and Act, the Kerala Joint Hindu Family system
(Abolition)Amendment Act 1978 and the valiamma
Thampuron Kovilakam Estate and Palace
Fund(Partition)5 1961 (16 of 1961), as amended by
the said Act, shall continue to be in force and
shall apply to the Valiamma Thampuran Kovilakam
Estate & the Palace Fund administered by the
Board of Trustees appointed under section 3 of
the said proclamation.
The Schedule
[See section 7(2)
Acts repealed
(1) The Madras Marumakkathayam Act, 1932
(XXII of 1933);
(2) The Madras Aliyasantana Act, 1949(IX of
1949);
(3) The Travancore Nayar Act, II of 1100;
(4) The Travancore Ezhava Act, III of 1100;
(5) The Nanjinad Vallala Act of 1101 (VI of
1101);
(6) The Travancore Kshatriya Act of 1108,
(VII of 1108);
(7) The Travancore Krishnavaka
Marumakkathayee Act, (VII of 1115);
(8) The Cochin Thiyya Act, VII of 1107;
(9) The Cochin Makkathayam Thiyya Act, XVII
of 1115;
(10) The Cochin Nayar Act, XXIX of 1113;
(11) The Cochin Marumakkathayam Act, XXXIII of
1113;
(12) The Kerala Nambudiri Act, 1958 (27 of
1958)
FOOT NOTES
1. WTO v Madhavan Nambiar(K)(1988) 169 ITR 810; CWT
v Padmanabhan (PM) (1989) 179 ITR 243.
2. CWT v Padmanabhan (PM)(1989)179 ITR 243;
3. Deputy CAgIT v Chidambaram (RS)(1994) 209 ITR
531(Ker) distinguishing Surjit Lal Chhabda v CIT
(1975) 101 ITR 776 (SC): 1976(2) SCR 164; Krishna
Prasad (C) v CIT (1974) 97 ITR 493(C);
Narendranath (NV) v CWT (1969) 74 ITR 190 (SC):
1970 SC 14: Gowli Bhddanna v CIT (1966) 60 ITR
293 (SC).
4. Chellamma v Narayana 1993 Ker 146 (FB).
5. By section 8 of Valiamma Thampuram Kovilakam
Estate and the Palace Fund (Partition) and the
Kerala Joint Hindu Family System (Abolition)
Amendment Act, 1978 (Act 15 of 1978) after
section 7 of the Kerala Joint Hindu Family System
(Abolition) Act, 1975 (Act 30 of 1976) section 8
was inserted and shall be deemed always to have
been inserted.
ANDHRA PRADESH ACTS, ORDINANCES
AND REGULATIONS, ETC.
The following Act of Andhra Pradesh Legislative
Assembly which was reserved by the Governor on the 10th
October, 1985 for the consideration and assent of the
President received the assent of the President on the
16th May, 1986 and the said assent is hereby first
published on the 22nd May, 1986 in the Andhra Pradesh
Gazette for general information.
ACT NO. 13 OF 1986
An Act to amend the Hindu Succession Act, 1956
in its application to the State of Andhra
Pradesh.
Whereas the Constitution of India has proclaimed
equality before the law as a Fundamental Right;
And Whereas the exclusion of the daughter from
participation in coparcenary ownership merely by
reason of her sex is contrary thereto;
And Whereas such exclusion of the daughter has
led to the creation of the socially pernicious
dowry system with its attendant social ills.
And Whereas this baneful system of dowry has to
be eradicated by positive measures which will
simultaneously ameliorate the condition of women
in the Hindu society;
Be it enacted by Legislative Assembly of the
State of Andhra Pradesh in the Thirty-Sixth Year
of the Republic of India as follows:
Short Title, Extent and Commencement
1.(1) This Act may be called the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986
(2) It extends to the whole of the State of Andhra
Pradesh.
(3) It shall be deemed to have come into force on
the 5th September, 1985.
2 Insertion of a new Chapter II-A in Central Act
30 of 1956
In the Hindu Succession Act, 1956 (hereinafter
referred to as this Act) after Chapter -II, the
following chapter shall be inserted, namely:-
CHAPTER - II-A.
Succession by survivorship
Equal rights to daughter in coparcenary property
29A.- Notwithstanding anything contained in Section 6
of this Act-
(i) in a Joint Hindu family governed by Mitakshara
Law, the daughter of a coparcener shall by birth
become a coparcener in her own right in the same
manner as the son and have the same rights in
the coparcenary property as she would have had
if she had been a son, inclusive of the right to
claim by survivorship, and shall be subject to
the same liabilities and disabilities in respect
thereto as the son;
(ii) at a partition in such a joint Hindu Family the
coparcenary property shall be so divided as to
allot to a daughter the same share as is
allotable to a son.
Provided that the share which a
pre-deceased son or a pre-deceased daughter
would have got at the partition if he or she had
been alive at the time of the partition shall be
allotted to the surviving child of such
predeceased son or of such pre-deceased
daughter;
Provided further that the share allotable
to the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, if such child had
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 of the
pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes
entitled by virtue of the provisions of clause
(i) 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
will or other testamentary disposition;
(iv) nothing in clause (ii) shall apply to a daughter
married prior to or to a partition which had
been effected before the commencement of Hindu
Succession (Andhra Pradesh Amendment) Act, 1986.
Interest to devolve by survivorship on death
29-B When a female Hindu dies after the
commencement of the Hindu Succession (Andhra
Pradesh Amendment) Act, 1986 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 this Act.
Provided that if the deceased had left any
child or child of a pre-deceased child 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 female Hindu
Mitakshara coparcener shall be deemed to be the
share in the property that would have been
allotted to her if a partition of the property
had taken place immediately before her death
irrespective of whether she 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, before the death of deceased, had
separated himself or herself from the
coparcenary or any of his or her heirs to claim
on intestacy a share in the interest referred to
therein.
29-C Preferential right to acquire property in
certain cases
(1) Where, after the commencement of the Hindu
Succession (Andhra Pradesh Amendment) Act,
1986 an interest in any immovable property
of an intestate or in any business carried
on by him or her, whether solely or in
conjunction with others devolves, under
section 29A or section 29-B upon two or
more heirs and any one of such heirs
proposes to transfer his or her interest
in the property or business, the other
heirs shall have preferential right to
acquire the interest proposed to be
transferred.
(2) The consideration for which any
interest in the property of the deceased
may be transferred under this section
shall in the absence of any agreement
between the parties, be determined by the
court, on application being made to it in
this behalf, and if any person proposing
to acquire the interest is not willing to
acquire it for the consideration so
determined, such person shall be liable to
pay all costs of or incidential to the
application.
(3) If there are two or more heirs,
proposing to acquire any interest under
this section, that heir who offers the
highest consideration for the transfer
shall be preferred.
Explanation:- In this section `court'
means the court within the limits of whose
jurisdiction the immovable property is
situate or the business is carried on, and
includes any other court which the State
Government may, by notification in the
official Gazette, specify in this behalf.
TAMIL NADU ACTS & ORDINANCES
The following Act of Andhra Pradesh Legislative
Assembly received the assent of the President on the 15th
January, 1990 and is hereby published for general
information.
ACT NO. 1 OF 1990
An Act further to amend the Hindu Succession
Act, 1956, in its application to the State of
Tamil Nadu.
WHEREAS the Constitution of India has proclaimed
equality before the law as a Fundamental Right;
AND WHEREAS the exclusion of the daughter from
participation in coparcenary ownership merely by
reason of her sex is contrary thereto;
AND WHEREAS such exclusion of the daughter has
led to the creation of the socially pernicious
dowry system with its attendant social evils.
AND WHEREAS this baneful system of dowry has to
be eradicated by positive measures which will
simultaneously ameliorate the conditions of
women in the Hindu society;
Be it enacted by Legislative Assembly of the
State of Tamil Nadu in the Fortieth Year of the
Republic of India as follows:
Short Title, Extent and Commencement
1.(1) This Act may be called the Hindu Succession
(Tamil Nadu Amendment) Act, 1989
(2) It extends to the whole of the State of Tamil
Nadu
(3) It shall be deemed to have come into force on
the 25th day of March, 1989.
Insertion of new Chapter II-A
2. In the Hindu Succession Act, 1956 (hereinafter
referred to as the Principal Act), after Chapter
-II, the following chapter shall be inserted,
namely:-
CHAPTER - II-A.
Succession by survivorship
Equal rights to daughter in coparcenary property
29A.- Notwithstanding anything contained in Section 6
of this Act.
(i) in a Joint Hindu family governed by Mitakshara
Law, the daughter of a coparcener shall by birth
become a coparcener in her own right in the same
manner as the son and have the same rights in
the coparcenary property as she would have had
if she had been a son, inclusive of the right to
claim by survivorship; and shall be subject to
the same liabilities and disabilities in respect
thereto as the son;
(ii) at a partition in such a joint Hindu Family the
coparcenary property shall be so divided as to
allot to a daughter the same share as is
allotable to a son.
Provided that the share which a
pre-deceased son or a pre-deceased daughter
would have got at the partition if he or she had
been alive at the time of the partition shall be
allotted to the surviving child of such
predeceased son or of such pre-deceased
daughter;
Provided further that the share allotable
to the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, if such child had
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 of the
pre-deceased daughter as the case may be;
(iii) any property to which a female Hindu becomes
entitled by virtue of the provisions of clause
(i) 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
will or other testamentary disposition;
(iv) nothing in this chapter shall apply to a
daughter married before the commencement of
Hindu Succession (Tamil Nadu Amendment) Act,
1986.
(v) Nothing in clause (ii) shall supply to a
partition which had been effected before the
date of commencement of the Hindu
Succession(Tamil Nadu Amendment) Act, 1989.
29-B. Interest to devolve by survivorship on death
When a female Hindu dies after the
commencement of the Hindu Succession (Tamil Nadu
Amendment) Act, 1989 having at the time of her
death, an interest in a Mitakshara coparcenary
property by virtue of the provisions of Section
29-A, her 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 any
child or child of a pre-deceased child, 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-I.- For the purposes of this section, the
interest of a female Hindu Mitakshara coparcener
shall be deemed to be the share in the property
that would have been allotted to her if a
partition of the property had taken place
immediately before her death, irrespective of
whether she was entitled to claim partition or
not.
Explanation II: Nothing contained in the proviso to
this section shall be construed as enabling a
person who, before the death of deceased, had
separated himself or herself from the
coparcenary, or any of his or her heir to claim
on intestacy a share in the interest referred to
therein.
29-C Preferential right to acquire property in
certain cases
(1) Where, after the commencement of the Hindu
Succession (Tamil Nadu Amendment) Act, 1989, an
interest in any immovable property of an
intestate or in any business carried on by him
or her, whether solely or in conjunction with
others, devolves under section 29A or section
29B upon two or more heirs and any one of such
heirs proposes to transfer his or her interest
in the property or business, the other heirs
shall have preferential right to acquire the
interest proposed to be transferred.
(2) The consideration for which any interest
in the property of the deceased may be
transferred under this section shall, in the
absence of any agreement between the parties, be
determined by the court on application being
made to it in this behalf and if any person
proposing to acquire the interest is not willing
to acquire it for the consideration so
determined, such person shall be liable to pay
all costs of or incidential, to the application.
(3) If there are two or more heirs proposing
to acquire any interest under this section, that
heir who offers the highest consideration for
the transfer shall be preferred.
Explanation:- In this section `court' means the court
within the limits of whose jurisdiction the
immovable property is situate or the business is
carried on, and includes any other court which
the State Government may, by notification in the
Tamil Nadu Government Gazette specify in this
behalf.
3. Certain Partitions to be null and void
Notwithstanding anything contained in the
principal Act or in any other law for the time
being in force, where on or after the 25th day
of March, 1989 and before the date of
publication of the Act to the Tamil Nadu
Government Gazette, any partition in respect of
coparcenary property of a Joint Hindu Family has
been effected and such partition is not in
accordance with the provisions of the principal
Act, as amended by this Act, such partition
shall be deemed, to be, and to have always been,
null and void.
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