WOMEN SHARE IN ANCESTRAL PROPERTIES - AN UPDATE

The Supreme Court of India in a ruling that will restrict the right of women seeking equal share in ancestral property, said that the 2005 amendment in Hindu law will not give property rights to a daughter if the father died before the amendment came into force.(2005)

The father (Coparcenor) must be alive on the date of amendment (2005) and the daughter must also be alive to claim her share in the ancestral properties.

The court held that the amended provisions of the Hindu Succession (Amendment) Act, 2005, could not have retrospective effect despite it being a social legislation.

The court said the father would have had to be alive on September 9, 2005, if the daughter were to become a co-sharer with her male siblings.

The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005.

The apex court judgment has now added another disqualification for women regarding their right of inheritance. Until now, they could not ask for a share if the property had been alienated or partitioned before December 20, 2004, the date the Bill was introduced. This judgment makes it imperative for the father to have been alive when the amendment came into force.

Settling the law in the wake of a clutch of appeals arising out of high court judgments, a bench of Justices Anil R Dave and Adarsh K Goel recently held that the date of a daughter becoming coparcener (having equal right in an ancestral property) is “on and from the commencement of the Act”.

The bench overruled the view taken by some high courts that the amendment being a gender legislation that aimed at according equal rights to the daughter in ancestral property by removing discrimination, should be applied retrospectively.

Interpreting statutory provisions, the top court shot down the argument that a daughter acquires right by birth, and even if her father had died prior to the amendment, the shares of the parties were required to be redefined.

“The text of the amendment itself clearly provides that the right conferred on a ‘daughter of a coparcener’ is ‘on and from the commencement’ of the amendment Act. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text,” it said.

Further, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intent, noted the court, adding “even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature”.

About applicability of the amendment to the daughters born before it was brought, the bench held that the new law would apply irrespective of the date of birth.

“All that is required is that the daughter should be alive and her father should also be alive on the date of the amendment,” it said.

The court also held that alienation of ancestral property, including its partition, which may have taken place before December 20, 2004, in accordance with the law applicable at that time, would remain unaffected by the 2005 amendment, and those partitions can no longer be reopened by daughters.

FULL TEXT OF HINDU SUCCESSION ACT,2005, AS PRESENTED IN RAJYA SABHA

Hindu Succession (Amendment) Act, 2005 Empowering Women

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Westernisation and globalization have radically changed the face of India. This change is most evident in its effect on the Hindu Joint Family system. Families that would give the saas-bahu serials of today a run for their money have now given way to nuclear families. With the advent of modernization and the feminist movement gaining ground, the woman no longer plays a subservient role in society and indeed has overshadowed man in most fields. In the era of feminism, uncomfortable questions arise as regards the role of age-old customs and traditions of Hinduism in the modern world. For instance, does the bastion of 


Hindu Law - the Hindu Succession Act, 1956 ascribe an equal status to men and women? Can Hindu women now claim a right to ancestral property-a right that has been denied of them since times immemorial? Are woman truly on the same legal footing as men? An analysis of the Hindu Succession Act, 1956 (“Act”) and the forward looking amendments thereto would seem to suggest as much. This Article analyses monumental change introduced into Hindu law through the Hindu Succession (Amendment) Act, 2005 (“the Amendment Act”). It postulates that that while the wording of Section 6 might be couched in ambiguity, the section needs to be given the widest possible interpretation to ensure that the broad changes concerning the status and rights of women in respect of coparcenary property are not defeated by resorting to legalese. 


Introduction of new Section 6: The Amendment Act introduced a new section 6 into the Act, by virtue of which a daughter of a coparcener in a joint Hindu family governed by Mitakshara law becomes a coparcener in her own right and enjoys rights equal to those enjoyed by the son of a coparcener. 


The relevant part of Section 6 reads as follows: “6. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,— (a) also by birth become a coparcener in her own right; the same manner as the son here; (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: …” Implications: The newly introduced section 6 provides that a daughter shall by birth become a coparcener in her own right. The implications of the introduction prima facie appear to be that a daughter stands on an equal footing with a son of a coparcener and is invested with all rights, including the right to seek partition of the coparcenary property. Problematic interpretations: The newly introduced section 6 begins with the words “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. A question therefore arises as to the status of women married prior to the commencement of the Amendment Act, i.e. prior to 9th September 2005 (“said commencement date”). In other words, would women married prior to the said commencement date have a right to claim a share in partition of joint family property occurring subsequent to the said commencement date? Arguments in favour of wide interpretation: A perusal of the Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament; consideration of the Statement of Objects and Reasons of the Amendment Act and comparison with existing State legislations seems to lead to the conclusion that the Amendment seeks to introduce the concept of gender equality and consequently draws no specific distinction between married and unmarried women. 
 A. Opening Speeches at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament A perusal of the Opening Speeches at the time of the introduction of the Hindu Succession (Amendment) Bill, 2004 in Parliament clearly establishes the intention of the Legislature in respect of applicability of the newly introduced Section 6 to married women: The Hon’ble Law Minister H.R Bharadwaj in his introductory address in the Rajya Sabha observed: “…Sir, this has to be improved further and now the present law makes certain provisions. The benefit of the proposed new section relating to devolution of interest in coparcenary property is one item, and, declaring daughters also as coparceners by birth is proposed to be extended to married daughters as well subject to the condition that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which has taken place before the introduction of this Bill in Rajya Sabha on 20th December, 2004. 


 Similarly, in his opening address in the Lok Sabha, the Hon’ble Law Minister observed: “…By this Bill, we are amending Section 6 to enable devolution of interest in coparcenary property to daughters, both married and unmarried…” An extract of the Parliamentary Debate in the Lok Sabha would, put the matter to rest: “A question was asked here whether the property will devolve only on the married daughter or on the unmarried daughter also. Another point was raised that this provision should be extended to the married daughter also. I feel that it would be possible to extend this provision to the married women also if it is not going to bring a large number of litigations. But the Hindu society, as we know, cannot tolerate this as we cannot fix the cut-off date for it. If the Government can have a cut-off date, say for example, daughter married before 10 years or from such and such date, then I would be happy that this provision of the right to property is extended to married women also. 
Actually, we have provided it for married women also. I have moved an amendment in the Rajya Sabha for it, and it has been carried. PROF. M. RAMADASS : Then it is all right. I am very happy that you have taken note of our view also. MR. CHAIRMAN: The Standing Committee has also recommended it.” (emphasis supplied) It is clear from the above that the intention of the Parliament at the time of introduction of the Hindu Succession (Amendment) Bill, 2004 itself was that the newly introduced section 6 would confer coparcenary rights by birth upon women, irrespective of whether they were married prior to the said commencement date. B. Statement of Objects and Reasons of the said Amendment The provisions of the amended Section 6 of the Act have been introduced with the avowed objective of “removing the discrimination contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in Hindu Mitakshara coparcenary property as the sons have.” It was felt that the retention of Mitakshara coparcenary property without including the females in it meant that females could not inherit as their male counterparts did and that the existing law by excluding the daughter from participating in coparcenary ownership not only contributed to her discrimination on the grounds of gender but also led to oppression and negation of her fundamental right to equality guaranteed by the Constitution. 


The Amendment is thus clearly a social welfare legislation and consequently, in accordance with considerable judicial dicta must be given the broadest possible interpretation. As the Amendment does not specifically draw a distinction between married and unmarried women, reading such a distinction into the provisions of the newly introduced Section 6 would unnaturally restrict the scope and applicability of the said Section and be self-defeating in as much as the principal objective of gender equality would be available only to women unmarried as of the said commencement date. C. Comparison with existing State legislations “Succession” is a subject falling under the Concurrent List of the Seventh Schedule to the Constitution and consequently both the Centre and the States have the power to legislate on the said subject. It is pertinent to note that a few states like Maharashtra, Andhra Pradesh, Karnataka etc. had enacted legislations prior to the commencement of the said Amendment Act containing provisions similar to the new Section 6 of the Act. These State legislations specifically draw a distinction between married and unmarried daughters: i. Maharashtra “29-A(iv). Nothing contained in this Chapter shall apply to a daughter married before the date of commencement of the Hindu Succession (Maharashtra Amendment) Act, 1994”. ii. Andhra Pradesh “29-A(iv). Nothing in Cl (ii) shall apply to prior a daughter married to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986” iii. Karnataka “6A(d) nothing contained in clause(b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990.” 


It is clear from the above that while various State legislations specifically draw a distinction between a married daughter and an unmarried daughter, the newly introduced Section 6 does not draw any such distinction. Given the fact that the said Amendment Act is a social welfare legislation, it must be beneficially construed so as to include all classes of persons not specifically excluded from its purview. D. Analysis of case-law In Sugalabai v. Gundappa A. Maradi and Ors {ILR 2007 KAR 4790 : 2008 (2) Kar LJ 406}, the specific question before the Court was whether a daughter who was married prior to the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990 would be entitled to a share as a coparcener in light of section 6-A(d) of the Hindu Succession (Karnataka Amendment) Act 1990 (extracted above) read with the amended section 6 of the Act. The Court observed: “50. 


Thus, to conclude the discussion on the point under consideration, in the wake of the aforesaid principles laid down by the Apex Court and by this Court in the cases referred to above, and also taking into account the provisions contained in Section 6-A(d) of the Karnataka Act 1990 and the Central Amendment Act of 2005, I find myself fully in agreement with the submissions made by the learned senior counsel Sri. V. Tarakaram and learned counsel Sri. Desai and Sri. Balakrishna Shastry that Section 6-A(d) of the Karnataka Amendment Act 1990, cannot, but be termed as repugnant to the Central Act of 2005 and as such, the said provision contained in Section 6-A(d) which excludes a daughter, married prior to coming into force of the Karnataka Amendment Act, 1990, from being entitled to be treated as a co-parcener, is void and ceases to have any affect. 


Point No. 1, is accordingly answered. … As far as the second question of law is concerned, it is the submission of the learned counsel Sri. Desai that the lower appellate Court erred in modifying the share of the appellant from 1/4th to 1/8th and in effecting the said modification, the lower appellate Court proceeded on the footing that the appellant being a married daughter will not be entitled to claim partition as she was not a co-parcener. In view of the change in the law brought about by the Karnataka Amendment Act of 1990, giving the daughter equal right as that of a son at partition in respect of co-parcenary property, and further, this Court having taken the view that Section 6-A(d) of the State Act being repugnant to the Central Act of 2005 the disability that a daughter married prior to coming into force the Karnataka Amendment Act, 1990, being ineligible, ceases to have any effect and consequently the view taken by the lower appellate Court in reducing the share of the appellant from 1/4th to l/8th cannot be upheld in law.” (emphasis supplied) 


Conclusion: In light of the above, it seems clear that the newly introduced Section 6 would be applicable to all daughters, whether married or unmarried prior to the said commencement date. The Amendment Act therefore goes a long way towards the establishment of gender equality and abolition of the patrilineal system of inheritance prevailing among Hindus.

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ORAL PARTITION AND FAMILY ARRANGMENT

 ORAL PARTITION AND FAMILY ARRANGEMENT IS  INCLUDED IN FAMILY PARTITION 

Section 6 of the Hindu Succession Act, 1956 deals with devolution of interest in coparcenary property. The Act was amended by Act 39 of 2005 and a new section 6 was substituted. Sub-section (5) of section 6 and the Explanation thereto read thus:

The Explanation defines “partition” as any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of court. This definition of “partition” does not include oral partition and family arrangement.

Since the amended Act has failed to include oral partition and family arrangement within the definition of “partition”, which are common and legally accepted modes of division of property under the Hindu Law, the Commission undertook this subject suo motu.

1.1 The Hindu Succession Act, 1956 (30 of 1956) is a part of the Hindu Code which also includes the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956. These Acts brought about revolutionary changes in the law relating to Hindus. It codified the law relating to marriage, succession, adoption, etc.

1.2 The Hindu Succession Act made a revolutionary change in the law relating to succession, especially for female Hindus. For the first time, a Hindu female could become an absolute owner of property. She could inherit equally with a male counterpart and a widow was also given importance regarding succession of her husband’s property as also of her father’s property. The Hindu Succession Act

was amended in 2005 by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) to provide that the daughter of a coparcener in a joint Hindu family governed by the Mitakshara Law shall by birth become a coparcener in her own right in the same manner as the son, having the same rights and liabilities in respect of the said property as that of a son.

1.3 Section 6 of Hindu Succession Act deals with devolution of interest in coparcenary property. Section 6, before its substitution by Act 39 of 2005, read as under:

2. JUDICIAL VIEW

2.1 The Supreme Court of India in its judgment dated 21.01.1976 in Kale and Ors. v. Deputy Director of Consolidation and Ors., 1976 (3) SCC 119, while dealing with a memorandum of family arrangement through family settlement, held that the family arrangements are governed by a special equity peculiar to themselves and that the family arrangement may have been oral in which case no

registration is necessary and that the registration would be necessary only if the terms of the family arrangement are reduced into writing.

2.2 The Supreme Court has observed: -

“By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.  “The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. It promotes social justice through wider distribution of wealth. Family therefore has to be construed widely. It is not confined only to people having legal title to the property.

“Courts lean in favour of family arrangements. Technical or trivial grounds are overlooked. Rule of estoppel is pressed into service to prevent unsettling of a settled dispute.

“Family arrangement may be even oral in which case no registration

is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between the document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable. “So a document which was no more than a memorandum of what had been agreed to did not require registration.

 “Hence a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the court for its information for mutation of names is not compulsorily registrable and therefore can be used in evidence of the family arrangement and is final and is binding on the parties.

“Even if a family arrangement which required registration was not

registered it would operate as a complete estoppel against the parties who have taken advantage of the family arrangement. “Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:

2.4 Thus, it would appear from a review of the decisions (supra), that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties, the matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds.

3. RECOMMENDATION by the LAW COMMISSION.

3.1 Oral partition or family arrangement is an extremely valuable power whereby the peace, happiness and welfare of a family are secured and litigation is avoided. It is specifically helpful in the case of illiterate members of a family or who have no means to bear expenditure of legal process/advice etc.

3.2 By the 2005 amendment in the Hindu Succession Act, oral partition and family arrangement which had been effected prior to the enactment would be set at naught. Hence, the Commission proposes a suitable amendment in the Explanation to section 6 of the Hindu Succession Act, 1956 to include oral partition and family arrangement in the definition of “partition”.