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Analysis of Section 6 Of the Hindu Succession Act, 1956


Introduction

The Indian civilization is one of the oldest Civilizations in the world. The majority of the Hindu Civilization in India comprises Hindus. The Hindu Law is considered as one of the oldest laws in the history of India. Has been derived from the Shruti and Smritis. Customs also act as one of the major sources of Hindu law. Customs are often described as the parents of all laws in a society as all rules can trace their origin or root in the popular custom or usage.


Inheritance is defined as the passing of the title of the property to the legal heirs at the death of the head of the family. In India, the inheritance laws are governed by different religious personal laws. For Hindus, there is a Hindu Succession Act of 1956 covering Buddhist, Jains, Sikhs and Arya Samaj. Inheritance laws for Muslim are governed under Shias and Sunnis laws which are not codified in the statutes. Under the Christian religion, there is a The Indian Succession Act, 1925 which governs the law of inheritance.

Section 6 of the Hindu Succession Act, 1956 talks about the property division between the coparceners in a Joint Family under the Mitakshara Hindu School. Before the amendment in 2005, only the male descendant can have the share in the Joint Hindu Family property about Section 6. The daughter does not have any claim on the same. Their share was only limited to the stridhan.


Joint family is a family comprising members of a unilineal descent group who live together with their spouses under the authority of one of the members. A person who acquires the right by birth in the property is called Coparcenary. The person is also a part of the Joint Hindu Family. The Coparcenary can claim the right in the ancestral property and the self-acquired property. The share in the case of self-acquired property can be managed through a will created by the owner before the death.


  1. Whether there was a need of Hindu Succession Act, 1956?

During the time of Pre-Independence there were various Hindu School governing Inheritance Laws in India. The various schools are governed by the Shastric and Customary Law from region to region and governed depending upon the caste of the person. There were many laws under Hindu religion and the same had many sub Schools ultimately making a divergence with respect to the inheritance law. There were two main schools i.e. Mitakshara and Dayabhaga. Mitakshara was further divided into three sub schools. Further there were tribal communities also in the country of India and they followed Hindu law but have different laws in regard to succession.

Under the traditional Hindu Law, the women were not given right to inherit property from their father as well as husband. In India the disputes related to family were initially settled among the family members. Even if there was a requirement of an outside settlement the same was referred to the panchayat during that time. The decision given by the panchayat was also respected by everyone in the area. During the time of British India, the Judiciary System of British mainly dealt with the laws of civil and criminal in nature. They never dealt with matters related to the family. But the matter related to the family property would have brought a revenue to the court therefore they started to intervene in the matter of the family disputes. In the absence of any specific law related to inheritance they started to apply their own laws established and ultimately they have to face this formal court with the rigid and technical procedure, unfamiliar surroundings and total strangers deciding the dispute in an unfamiliar language.


With no knowledge of the custom, family culture and the concept of joint family the courts relied on pandit and a few translated texts. unable to get the exact information from the pandit, the court now began to rely on a few translated texts that were available. One of major legislation passed by the British Government was The Hindu Women’s Rights to Property Act, 1937 which gave women a right in the ancestral property but the same wasn’t proved to be far reaching.


Therefore, the Hindu law committee was initially appointed by resolution of the Government of India in 1941. The committee in its report expressed in favour of a codification of Hindu law by stage. The government accepted this view and two draft bills one dealing with the law of succession and the other dealing with the law of marriage. After extensive and furious charged debate placed innumerable hurdles in the path of its enactment and the fragmented legislation was passed only 1955-56.


The Hindu succession act of 1956 came into existence on 17th June. The main objective of the earth was to provide a comprehensive and uniform scheme of intestate succession laws for Hindus. Some of the basic features of the Parliamentary Legislation are:

  1. The Act abolished the distinct laws of succession under the Dayabhaga and the Mitakshara system and provided a uniform law based on love and affection and nearness in relationship.

  2. The parliamentary legislation modified the laws of Mitakshara coparcenary and its devolution by survivorship.

  3. it continued the permissibility of holding two-fold share by a Hindu male, a separate as well as share in the undivided coparcenary.

  4. The disqualification for inheritance based on physical and mental disease were removed. The same was done in reference to the Caste Disability Removal Act 1850.

  5. All the fundamental concept of Mitakshara coparcenary is categorization of property into separate and ancestral, the manner of the acquisition, features, concept of Karta, etc.

  6. The art retained the concept of the dwelling house but only with respect to female class 1 heirs in the presence of male heirs.

  7. The act specifically protects the rights of posthumous children.

  8. The Parliamentary Legislation laid down new provisions for the devolution of property of a male Hindu as well as of a Female Hindu, dying interstate.

  9. A male member of the Coparcenary was allowed to dispose of his interest in the Coparcenary by a will.

  10. The Act abolished the concept of limited estate for Hindu women and replaced it with absolute ownership.

While the drafting of the Hindu succession Act 1956 there was a pressure mounted on the Indian Parliament to ensure the retention of certain traditional concepts despite their abolition by the original Hindu Code of 1948.


  1. What was the position of women after the enactment of the Hindu Succession Act, 1956?

The Hindu succession Act was enacted in 1956 which formed the personal laws of Hindus and gave women absolute and full ownership of property. Prior to 1956 women were allowed to hold two kinds of property: 1) Stridhan; 2) Women Estate. By the virtue of section 14 of the Hindu Succession Act 1956 the women right to hold an estate was abolished. Stridhan is defined as the women property which she has received by a way of gift, mostly including movable properties such as ornaments, jewelry, etc from her relations. She has got the whole right over it to sell, alienate, etc.


Section 14(1) of the Hindu Succession Act 1956 which gives right to the female Hindu as a full owner of the property acquired before or after commencement of the statute and not as a limited owner. The Supreme Court of India in the case of Punithavalli v Ramanlingam, explained the importance of Section 14(1) stating that “the provision given women an absolute ownership under Section 14(1) is a departure from Hindu law, text or rules, and the estate.” Further the explanation of Section 14(1) of the statute says that the property comprises both movable and immovable property which the women can acquire.


Presented by scheme in Hindu Succession Act 1955 provides that under the Joint Family Mitakshara Coparcenary only male can become the coparcener and the same is against the rule of gender equality. Prior to the 2005 amendment, Section 6 of the Amendment Act provided that a male Hindu having an interest in the undivided joint family property died then his interest would be taken up by the rule of survivorship by the surviving coparceners. Even in case of the partition of the joint family property the male coparcener of the family gets his share, and the females were left with nothing.


Due to the discrepancy in the main Parliamentary Legislation certain states of India like Kerala, Andhra Pradesh, Tamil Nadu, etc enacted a separate state legislation to overcome the position of Hindu women in the Mitakshara coparcenary. The state legislation of Kerala also known as Kerala Joint Hindu Family System (Abolition) Act of 1975 completely abolished the concept of Joint Hindu Family System.


Further under the chairmanship of Justice BP Jeevan Reddy the important recommendation was made in the 174th Law Commission Report on “Property Rights of women: Proposed Reforms under Hindu law”.

  1. Amendment made in Section 6 by Hindu Succession (Amendment) Act, 2005 passed by the Parliament of India.

After the recommendation made in the 174th Law commission report on “Property Rights of Women - Proposed Reforms under Hindu law”, the Hindu Succession (Amendment) Bill 2005 was introduced in the Parliament. The same was introduced on 28 December 2004 and passed by Rajya Sabha on 16th August 2005 and Lok Sabha on 29th August 2005. The bill received the President's assent on 5th September 2005 and came into force on 9th September 2005.


The Amendment Act passed by the Parliament incorporates a combination of Andhra and the Kerala model. The basic outline of the Amendment Act is that it retains the concept of the Joint Hindu Family and introduces daughters as coparceners. The Act abolishes the concept of pious obligation in which the son is liable to pay the debt of his father.


Abolition of Doctrine of Survivorship

Another important amendment was made in section 6 sub clause 3 of the Hindu Succession Act of 1956. Prior to the amendment the share of each coparcenary used to get changed on the death and birth in the family. If there is a birth in the family then the share of each coparcenary would decrease and if there is death of any coparcener then the share of each will increase. The same used to happen due to the doctrine of the survivorship and in the 2005 amendment the same was removed. Therefore, as for the present law if the Hindu male dies in a family then his undivided interest in the Mitakshara coparcenary would not be governed by the rule of survivorship. The same shall be governed by the testamentary or an intestate succession.

Taking an instance of a family, suppose there is a father and two sons in a family. Each of them has one third share in the joint family property. One of the sons dies. Under the old law the share of the son who died will be taken up equally by both the member that is father and the remaining son therefore each would have one half of the share in the property on the death of the son. After the amendment, the doctrine of survivorship has been abolished therefore the share of the son who died would be calculated after affecting a notional partition and the same will come to one third in the given case. This one third share in the absence of any will, will go under the Hindu Succession Act 1956 between father and the alive brother but the preference will be given to the father and the brother will be excluded from inheritance in his father's presence. Therefore, the father will get two third shares in the property while the brother or the remaining son will retain one third share.

The abolition of the same was an unnecessary move by the law makers because the new method has made the calculation of share more difficult and it imposes an inequality amongst the coparceners.


Daughters as a Coparceners in the Joint Hindu Family

Amendment was made in section 6 of the Hindu Succession Act 1956 and a new provision provided daughters to become coparceners of the Joint Hindu Family property by birth and acquiring similar rights and liability to that of a son. The rights which women got in the property depended on the status of the women in the family and her marital status, if the same is a daughter be it married or unmarried or deserted. The same also takes into account the kind of property to be dealt with whether it is ancestral, or self-acquired or a matrimonial property.


The changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which the daughter was subjected. The daughters are coparceners along with their male counterpart and is entitled and equal share in the coparcenary property. The daughters are allowed to ask for the partition of the property and dispose it off through a testamentary disposition.


In 2014 the Supreme Court of India in the case of Pratibha Rani Tripathi v. Vinod Bihari Tripathi held that after 2005 daughter of a coparcener has also become a coparcener and she is entitled to a share equal to the share of a son. In the instant case the widow wife filed a suit against her father in law for the partition of the Hindu Undivided Mitakshara Joint Family. The two daughters of the father also claim the right in the same and the supreme court upheld the contention of the daughter and shares were to be recalculated accordingly.

In the case of Maheshwar Amet v. Ujala Amet, the daughter filed for the partition before the 2005 Amendment Act and when the Amendment Act was passed the Supreme Court of India accepted her petition and allowed the same.

  1. What has been the position of women after The Hindu Succession (Amendment) Act 2005 vis-à-vis the take of Judiciary?

Indian Parliament passed the Hindu succession Amendment Act 2005 to give equal rights to daughters of share in the joint Hindu family property ultimately, they were also the coparcener. Following are the questions which arose after the 2005 amendment and has been interpreted by the different courts across the India since then:

  1. Whether the amendment is retrospective, or it is prospective in nature?

  2. Whether it applied to cases where the succession had already opened before the 2005 Amendment?

  3. What would be the effect of the daughter being declared to be a coparcener by birth, would her right to a share date back to the date of her birth, or would it apply to only a female born after 2005?

Supreme Court ruling in Prakash and Ors vs Phulvathi and Ors

The Supreme Court gave two basic clarifications with regard to the 2005 amendment made in Section 6 of the Hindu Succession Act 1956. Firstly, the court held that if a partition has taken place before 20th December 2004 then the daughter cannot seek a petition for a partition again. Secondly the court held that a daughter can be called a coparcener if her father is alive on the date 9th September 2005. And the act or the amendment is not applicable retrospectively, that is the daughter can be a coparcener from 9th September 2005 and not from her birth. Also, the Supreme Court of India laid a precondition that if the daughter wanted to claim any right then the father must have been alive at the time the enforcement of Amendment Act 2005 was done. The reason behind the same was if the father had already died it is presumed that the Succession had already taken place and the estate or his property have already been shared or vested to his legal heirs as per the law which was in enforce prior to 2005.


Lastly the condition laid down by the court was that the daughter must be alive at the time of the enforcement of the Amendment and if the daughter had died prior to the amendment then her legal heir cannot claim the right or share in the property.


Bombay High Court take in Bhadrinarayan Shankar Bhandari Vs. Omprakash Shankar Bhandari


The question regarding when both the daughter and the father are living after 2005 and the father has would only enter into an agreement with the son for the partition of the property. In this case what will be a scenario if the daughter wants to claim her right in the partition? The Bombay High Court answered the question stating that if there has been a partition even in the form of severance in status, by a declaration, and oral partition or even a suit for partition filed before 2005. In this case the father will no longer be a coparcener therefore the daughter cannot become a coparcener and claim the share for the same.


Supreme Court take in the case of Danamma v. Amar

In the instant a case for the partition was filed by the grandson after the death of the Karta of the family in 2001. Therefore, the daughter of the Karta also claimed the right in the property when the partition was taking place. The same was denied to them in 2007 by the Trial Court and the High Court in 2011 upheld the decision of the Trail Court on the ground that they were born before 1956 that is prior to the enforcement of Hindu Succession Act 1956.

Aggrieved by the decision the daughters file an appeal before the Supreme Court of India claiming the following contentions:

  1. Whether a daughter can be denied coparcenary if they are born prior to 1956?

  2. Alternatively, whether the daughter can become a Coparcener after the passing of the Hindu Succession Act 2005?

  3. What is the material date to decide their entitlement: is it the date of the death of the intestate or their date of the birth?

The Supreme Court held that the rights under the amendment are applicable to the living daughter irrespective of the date on which they are born. Further the Court held that a Section 6 is applicable to the daughter of a coparcener and the daughter by the virtue of her birth own right in the same manner as the son. Further the court explained that the new provision of Section 6 is same for daughter as well as son therefore in regard to a right as a coparcener will be applicable to them equally by birth.

Finally it was held that the suit for partition which was filed in the year 2002 and during the pendency of the same, the amendment was passed which crystallized the right of the daughters and hence they are entitled to the share in the partition suit.


Final Verdict in the case of Vineeta Sharma v. Rakesh Sharma

The Supreme Court of India mentions the contradicting view in the Phulvathi case and the Danamma case therefore the issue was referred to a larger than which comprises three judges of the Hon’ble Supreme Court:

  1. Whether the amended Section 6 of the Act of 2005 requires a coparcener to be alive as on 9 September 2005 for the daughter to claim rights in the coparcenary property?

  2. Whether the amended section 6 of the 2005 act is prospective, retrospective or retroactive?

The larger bench of the Supreme Court by referring to the various concept of the Hindu law like the coparcenary and the Joint Hindu Family and also the obstructed and unobstructed heritage came to a conclusion that it is not necessary for the father to be alive on 9th September 2005 in order for a daughter to inherit the property as a coparcener.


The bench explains the concept of obstructed heritage and unobstructed heritage with reference to section 6 of the Act. In section 6 the right is given by the birth and therefore it is the unobstructed heritage. Hence as per section 6 if the father of the daughter need not be alive at the time of the enforcement of the amendment, she can claim her share in the partition.


The court also had dealt with the applicability of the amended section via the Amendment Act 2005. The Supreme Court held that the same is retroactive in nature based on the characteristic or event which happened in the past or requisites which had been drawn from antecedent event. Also, a reading of section 6(4) provides that the Act cannot be retrospective in nature.

Conclusion

Even in Dharmashastra, the status of women was always subjected to male members. The enactment of 1956 Act did not give the rights to daughters in the property of the father on a notion that daughter being the part of another family after her marriage and should have no right in her father's property. Finally, after the 2005 amendment an equal status was granted to son and daughter in a joint Hindu family as under right to equality in enshrined under the Constitution of India.


The position of Hindu women in respect to the inheritance law and the property right has gone a great transformation from the ancient times to finally in the Hindu Succession Amendment Act 2005. Even though the law provides for the same, in our country there are places where they are still denied the lawful right due to the predominant thinking of a patriarchal society.


For the same there is a need for literacy campaigns and the awareness program so that women’s are aware about their right and can claim fruitfully without any hustle. There have been lot of effort taken by the government as well as nongovernmental organization in promoting the equal rights among the people and also attending the gender equality.

The Supreme Court has gone a long way in settling the controversy on the issue raised in the amendment of 2005. Now there has been the clarity and a great progress in the latest verdict as it has impacted the financial security of the women.


By Vijayant Goel, Bennett University.

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