Question of Law
1. Whether excluding daughter from the entitlement in HUF is valid?
2. Whether unmarried daughter and married daughter have different titles in HUF?
3. Whether the married daughter loses her privileges after marriage?
4. Whether the law made in this behalf serves the objective of the legislation?
The Supreme Court consisting of the Division Bench of Three Judges before whom the matter was raised on some question of law with regards to The Hindu Succession Act. The Division bench after considering the matter filed before the court authored a 121-page judgment in which such issues were dealt at length, the Solicitor General of India at length while submitting the arguments presented various precedents to present the status of the daughter with regards Hindu Succession Act and landmark judgments decided by the court. The court to decide the matter following explanation with the angle of law has been put forth by the court:
1. Understanding the school of law that regulates Hindu law
The Two laws that basically regulate the law in the country like India are the two school of thought which are known as the Mitakshara School of Law and the Dayabgha School of Law. The Mitakshara applies to almost every part of the country except the part of Bengal. The rules that were enunciated to govern the practices in Maharashtra was Maharashtra School that prevailed in the North India whereas the city/island of Mumbai was regulated by the Bombay School in western India. In the country with the variety of communities as descendants of various religious, sometimes also understood as caste it was in the Southern region such practices were regulated by the Marumakkatayam, Aliyasantana and Namburdiri system of law.
2. HUF (Hindu Undivided Family)
Ascendants and descendants connected to each other by birth in one single-family which continues such lineage for a long period of time practices, professing and propagating Hindu as their religion is called a Joint Hindu Family. In the business side of the matter, a Joint Hindu Family is also termed as Hindu Undivided Family which is a form of business organization wherein the Joint Hindu Family run business with appointing one-person male of the family who is the eldest in the family to be Karta (sole decision-maker of the business) and coparcener (supporter or worker in the business). The rights of any person to be in the organization arise only if you the person take the birth in the Joint Hindu Family. A Joint Hindu Family holds the assets of the business jointly under the name of the family. The understanding of the law that governs the HUF is that after there is any severance of the assets of the business, the family ceases to be called a Joint Hindu Family. The court in the matter understands and concluded thatthere exist any mere separation of the worship or separation at the food tables such separation will not hold the same understanding as to the separation of the HUF.
3. Hindu Succession Act before the 2005 Amendment
The understanding that was explained needs a thorough revision of the provision of the Hindu Succession Act prior to the year 2005, wherein the courts understand that there exists no logical but firm emphasis to incorporate and appropriate the assets among the male membersof the family. The family assets though not literally but theoretically were apportioned between the male members of the family such ascendants like father, grandfather, great grandfather and so on and in the descendant's such son, grandson and so on. The law is understood to provide such lineal descendants up to the third generation, and the fourth generation would rise to such right after the death of the first generation. Nothing but the birth in the family accrues such rights to any person such was the understanding with regards to the confinement. The person taking birth in the Joint Hindu Family inherits the coparcenary rights from the father, grandfather and/or great grandfather. Any person being a coparcener in the HUF holding any property from any other mean and not from the inheritance from the member of the HUF will not be treated as his property in coparcenary right. No person can claim as a single individual right over any property belonging to the Joint Hindu Family every person belonging to the family and is in coparcenary relationship to the HUF hold the asset of the HUF jointly. With regards to any other option of entitlement as coparcener is by way of adoption,the court held that it is the only way that is understood other than the primary reason of inheritance that exists as per the rule of law and the customs that support the reasoning of law. The Court with respect to the position of the women in the Joint Hindu Family understand that there exist a relationship of women, but such relation due different perception was limited to the entitlement of family member but not as a coparcener. The court also further explains that as the rule of law prevails over any conclusion out customs or traditions and coparcenary is the creation of law and as far as the law is concerned the regulation that governs the partition of the Hindu Undivided Family such can only be demanded by any person in the capacity of a coparcener. The test for the partition of the Joint Hindu Family can only be concluded with the person being coparcener or not and/or such person has exercised the right for partition.
4. Obstructed and Unobstructed Heritage
The terms havebeen definedin the school of thoughts/law which govern the actions and regulated the practices of heritage in the Hindu laws, the Mitakshara School of the law states that unobstructed heritage rights also are known as “apratibandha daya” and the obstructed rights is known as “sapratibandha daya”. The rights have their defined way in determining the privileges and rules of their devolution and apportionment. As the unobstructed rights state that any right accrued to any person by way of nothing else than by birth it should be obstructed by an action, it should accrue from the start and continue until the apportionment or his death whichever is earlier. The unobstructed rights mean any person born in the family has a birthright in the property of the Joint Hindu Family at the earliest day of birth. An obstructed right is rather an indirect rule of receiving such privilege which is directly connected to the birth of the person, and obstructed right arises when a person who is a coparcener in the Joint Hindu Family is dead or died by any reason as such, and there exists no male issue after the death of the coparcener and when the person as remainder receive such right.
The obstructed right suggests that there exist an obstruction because of which such right or privilege per say has to be withheld in this case it is obstructed by the existence of the male coparcener. It is the death of the coparcener when the obstructed rights in come in existence. The Court considered a brief overview of the school of law which governs and regulates practices of the inheritance, and the parallel history of the Joint Hindu Family and the focuses its attention on the provisions of the Hindu Succession Act, 1956. The Court finds it important for any person to understand the matter needs a fair overview of the Mitakshara School of thought to further create a basis of for deciding and understanding the law.
Supreme Court Stand
The Supreme Court opines that it was fair for the court to consider the law governing the Hindu Succession before directing anything in the above matter. The court further explains the Hindu Succession Act, 1956 pre-amendment scenario.
The Supreme Court herein mentioned that as the law governs the act of Human in the civilization or as the modern goes society it does not mean that the law is correct in each sense and phase of life, as the changing times' models of the life changes and new policy which better suits the society needs to be implemented and so for all those reasons which penultimate goal to secure, pursue and decide in favour of justice is resort to be taken and thus benefits all. As per the Hindu Succession Act, 1956 wherein section 6 dealt with the devolution of rights in the coparcenary interest in the Joint Hindu Family assets which are governed by the Mitakshara School of Law. In the Act, the important thing is to consider that section 6 of the Act excludes the rule of succession, which concerns to Mitakshara coparcenary property. Any person who interests in the property existed, and he dies after the existence of the Act of 1956 his interest in the property will be dealt with the rules and regulation and/or principles of survivorship among the remaining members of the coparcenary who also can be called as surviving members of the coparcenary.
In the year after 2005, various matters were filed, and the decision was made in behalf of the male child or male member of the family the discussion was held on the various occasion in different states considering the status of women in33 the world and with due consideration to the equal status and rights, and liabilities of the women was given priority and many states in the logical conclusion decided to make amendment in the Hindu Succession Act, 1956 and such amendment was made and complied. The extension of the rights of women was recognized in the Mitakshara School of law regarding the coparcenary in the Joint Hindu Family. In the Several States such as Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra the rights of women were extended to the equal status as to men in the Joint Hindu Family as a coparcener in the property. In Karnataka, the insertion in the following act was made in the year 1994 by amendment as section 6A pursuing to section 23 of the Karnataka Act, 1994. In the year 1985 the amendment was made in the state of Andhra Pradesh, and four years after the amendment in Andhra Pradesh the amendment was made in the State of Tamil Nadu in 1989. In the year 1994, the State of Maharashtra made the amendment by making an insertion by way addition under 29A in the Hindu Succession Act, 1956 as the notification came in very late, but the amendment was also proposed by Kerala in the year 1975. As the amendment was agreed and accepted in the law of succession in very few states, the inheritance was badly affected in consideration of women’s rights.
The Supreme Court of India, in its explanation, stated that there exists human relationship which is to be considered for inheritance or any such right of a coparcener. In the year 2005, the vast number of litigants with a new approach and new interpretation to the meaning of the provisions of the coparcener states that there should be an equal recognition to men and women while such position is concerned. The section 6 of the Hindu Succession Act will be dealt and interpreted differently from the time the Amendment Act of 2005 comes into effect, and it states that the daughter as a child to the person who owns the assets in the property of the Joint Hindu Family should be treated in the same way as a child born to such person as a son.
Further, section 6(1)(a) states that there exists no difference between the daughter and the son, which if exist, is supported by law. Section 6 (1) (a) of the Act does not define the gender of the issue while it dies to say that any person by taking birth in the family is eligible for the position of the coparcener any even if the neonate is a girl can take this position or if so is eligible for such position if she had been a male. In the Act, while layperson makes a plain reading understand that it confers the same rights to female and male in the context of inheritance. The Court realizes the effect of the amendment will be brought in practices from the day this judgment is passed,but there has been injustice caused to many litigants who have filed the suit against not just the Supreme Court but many High Court in different states wherein the amendment act has not been passed by or approved by the State Government, and the same provisions of the Act havebeen complied with following the inequality to which justice never approves and/or permits if exists, so in the regards with the objective to make the wrong done right this amendment will have the retroactive effect, and all the cases wherein the right of coparcenary which has been denied to all the females will be reversed and applied but in such situation that the other facts may comply with the decision understood and applied with appropriate provision but just the facts of gender inequality will be dealt with this understanding. There also remains one question as regards to the death of any person who dies after the year of 2005 when the Amendment Act confirms the status of the provisions therein, the Court states as far as the section 6(3) of the Act is concernedif any person belonging to the Joint Hindu Family dies then such apportionment of the property will be passed by the testamentary or intestate succession and nothing shall be permitted to apportioned by the survivorship. The Court further states that there existed partitioned by way division of shares among the members of the Joint Hindu Family and should be divided and allotted and apportioned if there or happens any partition after the death of such person as concerned in the Act. In this partition, as mentioned earlier, there should not exist any gender inequality; the daughter should be allotted an equal share in the property of the father if there be a partition.
There as stated exists the coparcenary right up to the third generation of lineal ascendants or descendants where in a situation the daughter is deceased at the time such partition her son and daughter will have the same rights as it was the son of the deceased son of the father who died up to three generations. The litigation, though, has brought a change in a delayed manner, but such change has brought itself with a vast area to be covered and provided for new thinking and relinquishment old idea and beliefs. The Act now states the apportionment by survivorship is completely have to go away as it destroyed the process to achieve the objective of the Act.
Liability on Female Coparceners
The Supreme Court, while explaining the concept of equality emphasized on the facts the equality if is intended to be brought home, will have to bringin its entirety there cannot exist equality where the privileges are provided but evaded from the act of responsibility and/or liability attached to such privileges. Section 6(4) of the Act makes the daughter liable in the same way as Son will if at all, such liability arises.
The Hindu Law with this presumption of equality Will has to be stated with the interpretation that as any debt incurring on the Joint Hindu Family was repaid of settles or discharged by the son, grandson and/ or great-grandson likewise the daughter herein will have to discharge such debt as same if she was a son.
The Court states that in deciding the matter, we state that we recognize the issues but also the proviso id read by a plain meaning provides a relief for all the partition commenced and concluded before the 20th December 2004 wherein the court states that only the partition that was made by the execution of the partition deed registered under the Indian Registration Act, 1908 and all such partitions decreed by the Court will be considered for such relief.
The issues that werenot resolved earlier is that the decisions in the controversial matter of Prakash v/s Phulavati it raised a question before the Court whether the requirement of the father alive at the time of such partition or at the time when such Amendment Act of 2005 is mandatory or not whereas no established foundation has been found where to answer in the question in any other than it can be that is no mandatory requirement of the father to be alive in the year of Amendment Act if any time the father of the daughter dies, and there occurs a partition the daughter will be allotted an equal share in the property of the father. The Court disagrees with the opinion of the bench in the case of the Prakash v/s Phulavati.
In India as succession is one of the common topics of discussion as the long history manifest the family and generational hierarchy in the country. The Country though were practicing the succession in most the conventional way appeared appropriate with the tradition followed by the royal families, but as the advance of understanding and maturity in the legal sector it was ruled as the guidelines issued which was enacted as the Act in the country by the legislature in the year 1956 known as the Hindu Succession Act, 1956. The understanding formed under the enacted Act was though governed with better perception than ever before but such rule of law if wishes to sustain the changes, need to be modified to the extent it satisfies the modern world expectation and so the matter has taken as priority by the Supreme Court to provide the way ahead for this Act to have a future and suffice the objective sought by the maker of the Law. The Act lacks the important aspects of modern world which is equality between male and female, the rights and privileges though not exclusive but includes liability was tilted towards the male in the family in the Joint Hindu Family. The Court has changed the perception of the Act and provides equal opportunity to male and female in the Joint Hindu Family with regards to liabilities and assets of the Hindu Undivided Family. The Court also makes such act retroactive and further serves the objective of the law maker and also makes it sustainable in today’s world.
The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .
Kishan Dutt Kalaskar
Advocate (Retired Judge)
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