Tamil Nadu National Law School, Tiruchirappalli

TOPICJOINT HINDU FAMILY AND COPARCENARYSubmitted on: April 21, 2015Submitted by:Gaurav Sinha (BA0130021)Submitted To: Ms. Sanitta Stephen Maria

Research Questions What is the concept of coparcenary and joint Hindu family?

What changes have been brought in the concept of coparcenary under Hindu

Succession Act, 1956 ?

How has the amendment of 2005 brought a major change in the concept of coparcenary and what are its implications?

CHAPTER I

INTRODUCTION

The joint and undivided family has been hitherto been the normal condition of Hindu Society. Coparcenery is a narrower concept than a joint family. Coparcenery is a unit of a joint Hindu family. It consists of only male members up to three generations from the last male common ancestor inclusive of him. Till the 19th century the laws relating to coparcenary were uncodified but the Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among

Hindus and gave rights which were till then unknown in relation to womens property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. With the gradual progress in the society, the issue of gender inequality in respect to succession of ancestral property .Thus, an amendment was brought in year 2005 which diluted the patriarchal system prevailing in Hindu society which has been considered as a sminece of discrimination among Hindu male and female. It also gives a serious blow to the Mitakshara coparcenary system, strengthening the notion of patriarchy in Hindu society.

1.1 Objectives of Research

The objective of the present research is to understand the concept of coparcenary and its incorporation in the Hindu Succession Act. Coparcenary is an ancient concept which has been modified and incorporated in the Act. The present research work focuses on how through generations the concept of coparcenary and joint Hindu family changed because of legislative amendments and decisions of the cminets. Moreover, it also talks about the implications of such amendments in regard to coparcenary and joint Hindu Family. The present study also provides for various anomalies created due to the amendments and also provides some suggestions to reform the Act.2 Purpose and Significance of the Study

Succession and inheritance of property is very important aspect of any society. Property is so important for a person to realize his worth in the society. With the gradual growth in the society the old concept of old coparcenary has somewhat diluted. Now even females have got a share in the ancestral property bringing equality in the society. But there still exist a lot of anomalies in this regard. Thus, research in this topic can be done for two purposes: utilitarian and academic. When papers are published on such issues, in comes in the limelight and efforts are made to bring improvements in this regard. At the same time it serves the purpose of providing solution to the problem. It even serves the purpose for further research in that particular field. When research is done with taking into account the judgments of various cminets of India, government policies and various personal laws involved, various solutions come to the forefront which may bring a reform in the society.

1.3 Methodology of Research

Research methodology is a way to systematically solve the research problem. It may be understood as a science of studying how research is done systematically .In it Istudy the various steps that state generally adopted by a researcher in studying his research problem along with the logic behind them. It is necessary for a researcher to know not only the research methods but also the methodology.

The research methodology used in the conducting of the research is secondary in nature. It refers to involving the summary, collation and/or synthesis of existing research rather than primary research, where data is collected from, for example, research subjects or experiments.

Secondary research can come from either internal or external smineces. Web smineces like ttp://cja.gov.in/data/Article.pdf and www.nalsar.ac.in. Certain recommended books by Poonam Pradan, U.P.D Kesari and publications of various justices and eminent academicians have been referred in this regard.

In analytical research on the other hand, the researcher has to use facts or information already available, and analyze these to make critical evaluation of the material. The research conducted is applied in nature as it provides a solution for the improving the condition of the women and bringing reform in the society.CHAPTER II

JOINT HINDU FAMILY & COPARCENARY: MEANING, IMPLICATION AND

DISTINCTION

2.1 The Concept of Joint Hindu Family

Hindu joint family is a kind of family system, which is typically seen amongst the Hindus only. The concept of Hindu joint family is nothing new, and it is in existence since long. This kind of family was well recognized by customary laws. According to the Bombay High Cminet, a joint Hindu family consists of all persons lineally descended from one common ancestor and includes their wives and unmarried daughters.[footnoteRef:1] The joint nature is the fundamental feature of this kind of family. However, the interpretation of this kind of jointness is not to be conceived in literary sense. One may say that mere staying together can constitute the status of jointness. The meaning, however, is far wider. The family is treated as joint not only with reference to the estate but also with regard to food and worship. However, the existence of a joint estate is not a fundamental requirement. A Hindu family can also be treated as joint even in the absence of any joint property. People may stay together for common enjoyment, nature of relationship existing and for mutual support and cooperation. [footnoteRef:2] [1: Commissioner of Income Tax v. Lakshmi Narayanan, AIR 1935 Bom 412 ] [2: Kader, S A,The Hindu Succession Act 1956 , Eastern Law House, 2004, p.16- A Hindu Joint Family must consist of at least two members. An unmarried male Hindu, on partition, does not by himself alone constitute a Hindu undivided family]

The origin of the institution of Hindu joint family can be traced in the ancient texts and writing of the Smritikars. This system, in fact, is sprung from the ancient patriarchal family, the earliest unit of human society. The head of such unit was always despotic in its practice. Hence the insertion of coparceners was entirely based on his absolute power. This institution is basically a creation of law and enfolds within it the lineal male descendants of a common ancestor and includes their mothers, wives or widows and unmarried daughters. Joint family status is ordinarily the result of birth or affiliation by the way of marriage and need not necessarily be

linked with the possession of joint family property.3 The presumption as to the jointness of any Hindu family basically revolves around the judicial principles laid down under various case laws. However, the basic premise is that in absence of any apparent division, every Hindu family is considered as joint family. Such presumption is stronger in case of brothers living together rather than cousins. However, this very presumption goes weaker when members keep on going further from the father in terms of relationship with him.4

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the ancient patriarchal system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the members of his family to follow, obeyed by everyone in his family, and having aunparalleled control over their lives and properties.

At the root was the general family welfare or promotion of family a unit for which personal interests of the family members could be sacrificed. Under Hindu law therefore the joint Hindu family came first in historical order and the individual recognition of a person distinct from the family came later.

2.1.1 Composition of Hindu Joint Family

A Hindu Joint Family consists of all male members descended lineally from a common male ancestor together with their wives, or widows and unmarried daughters.5 An unmarried daughter on marriage ceases to be a part of her fathers joint family and joins her husbands joint family as his wife. If a daughter becomes a widow or is deserted by her husband and returns to her fathers house permanently, she again becomes a member of her fathers joint family and continue being members of their fathers joint family. Even a illegitimate son of a male descendant would be a member of his fathers joint family.6 A child in the womb till it is not born is not a member of

3Agarwal, R K, Hindu Law, Dr. S.K. Singh (Eds), Central Law Agency, 2006, p.284. Since time immemorial the Hindus are accustomed to live in joint family units. Hence a joint Hindu family may best be understood by showing the status of jointness of members of whom it is made up. The existence of a joint property is again not required but what is required is ordinary household articles which they enjoy in common.4Binod Jena v. Abdul Hamid Khan, AIR 1975 Orissa 159.

5SurjitLal v. Commissioner of Income Tax, (1978) 101 ITR776.6GurNarain Das v. GurTahal Das, AIR 1952 SC 225joint family for taxation purposes7 but it is treated as in existence for certain purposes under Hindu law.

The members of a joint family are bound together by the fundamental principle of sapinda-ship or family relationship, which is the essential feature of this institution. The cord that knits the members of the family is not property but the relationship with one another. The MitakHindu Succession Act, 1956 ra doctrine of joint family property is founded upon the existence of an undivided family as corporate body.8 The first requisite is the family unit, and the possession by it of family property is the secondary requisite. Such body with its heritage is purely a creature of law and cannot be created by acts of parties save in so far that by adoption stranger may be affiliated as a member of that corporate family.9

The Supreme Cminet in SurjitLal Chhabda v. Commissioner of Income Tax, observed that the joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption.

Members of joint family- the members of joint family consist of the following Males:

Those that are lineally connected in the male line.

Collaterals.

Relatives by adoption, and

Poor dependents.

Son born out of marriage between a Hindu man and Christian woman under Special Marriage Act.

Females-

The wife or the widowed wife of a male member, and

His maiden daughters.

7Srinivasan v. Commissioner of Income tax, AIR 1962 Mad 146. 8SundarasamMaistiri v. NarasimhuluMaisteri, (1902) ILR 25 Mad 149, 154. 9GanasavantBal Savant v. NarainDhond Savant, (1883) ILR 7 Bom 467, 471The joint family system is organized on a principle of subordination and not on that of co-ordination or equality of the members with respect to rank under position under it. No two persons can be equal; one of them must be superior and the other relatively to each other.

Presumption of Jointness- The general principle is that every Hindu family is presumed to be a joint Hindu family and continues to be joint unless contrary is proved.10 It is presumed to be joint in food, worship and estate.

2.1.2. Factors determining Joint Hindu family

Until the contrary is proved, every Hindu family is assumed to be joint in terms of food, worship and estate. Mere living separately does not breach this jointness. Though it may be a relevant factor towards proving the state of separated but however it is not a conclusive one.11

Once a family is regarded as joint, then in absence of any clear-cut separation, the presumption of jointness remains intact. This indeed is a very strong presumption and it favmines the brothers who are continuing with the state of being joint. The burden of proof lies on the person who alleges that there is a severance of the joint status.12

In case of a partition already taken place, the general presumption would be that the joint status is no more available. However, at that time, if there is someone alleging that some part of the property is still existing in the undivided form then the burden shall be upon the person who alleges the existence of such unpartitioned property.13

When a joint family continues to hold property jointly then such property shall be treated as joint family property. However, on the basis of mere fact that the family is joint no assumption can be drawn that the nature of holding property is also joint. This is true because of the principle already referred above that it is not an essential requirement for a joint family to hold or possess property jointly.14

10BahagwanDayal v. Reoti Devi, AIR 1962 SC 287.11 Supra note 3 at p. 285.12Bharat Singh v. Bhagirathi, AIR 1966 SC 405.13K V NarayanswamiIyer v. K V Ramakrishna Iyer, AIR 1957 SC 289.

14D Rudrappa v. H Renukappa, AIR 1993, Kant, 148.The concept of Coparcenary in Hindu Law

The system of coparcenary is a narrower institution within a joint family comprising only male members. The group of persons, unlike the joint family, is related to each other only by blood or through a valid adoption. No person can by marriage and no stranger can by agreement become a member of coparcenary, as it is a creation of law.

Under the classical law, no female could be a member of coprcenary. The senior most male member is called the last holder of the property and from him a continuous chain of three generations of male members from the coparcenary. These males up to three generations from the present/last holder of the property have a right by birth in the joint Hindu family property and have a right to ask for partition of the same. Under the Hindu Succession (Amendment)Act, 2005; a daughter has been introduced as a coparcener.

2.2.1 Features of Coparcenary

The lineal male descendants of a person, up to third generation (excluding him), acquires interest on the coparcenary property held by him.

Coparcenary is necessarily a creation of law and it can never be created by agreement or otherwise.

In any coparcenary system whenever a coparcener is born acquires an interest by virtue of his birth.

A coparcenary system is a unique example of unity of possession and community of interest. Till a partition takes place no coparcener can have absolute ownership on the coparcenary property and hence alienation of such property without required permission and purpose is invalid.

The interest in any coparcenary property is always fluctuating as the amount of interest varies with the birth and death of coparceners.

A coparcenary property involves collective enjoyment only. There is no concept of individual enjoyment unless there is a partition to the effect.

In a Mitakshara coparcenary any major coparcenary can ask for partition any time. Such right for the asking for partition is an inherent right by virtue of his birth in that very coparcenary property and such right cannot be taken away by any contract in contrary.

If a property is a coparcenary property then alienation of interest is of any kind with respect to that property is null and void since every coparcener gets a birth right on that property hence without giving their due interests.15

2.2.2 The Two Schools of Coparcenary

In Hindu law of succession the coparcenary is still not codified. There are two Schools, viz., the Mitakshara and the Dayabhaga. According to the Mitakshara School, there is unity of ownership - the whole body of coparceners is the owner and no individual can say, while the family is undivided that he has a definite share as his interest is always fluctuating being liable to be enlarged by deaths and diminished by birth in the family. There is also unity of possession and enjoyment. Further, while the family is joint and some coparceners have children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and expenditure. Katyayana expressly states that the joint family property devolves by survivorship that is on the death of a coparcener his interest lapses and goes to the other coparceners. The conception of coparcenary under the Dayabhaga School is entirely different from that of the Mitakshara School. Under the Dayabhaga School, sons do not acquire any interest by birth in ancestral property, but the sons right arises only on the fathers death and the sons take property as heirs and not as survivors

2.2.3 Evolution of Joint Family Systems in India and Codification prior 1956

Hindu joint family is a very old system but still prevailing. In the old times the intricacies of Hindu joint family were only governed by the old customary laws. This used to prevail even during the continuance of the British period. However it is from that very time that the legislature had started intervening into the system slowly. The legislative intervention kept on increasing from time to time, and after independence, there have been substantial inroads by the

15PoonamSaxena, Family Law Lectures, Lexis NexisButterworths, New Delhi, 2010, p.111-113.legislature into this system. Not only the parliament but various state legislatures too have helped in giving newer shape to this system of joint family. As far as the legislative interventions are concerned, one may face this particular question as to what made the legislature intervene into the system of joint family. The general answer could be the appearance of certain irregularities in the eyes of legislature. This is true that in the old customary laws there were inequalities with respect to distribution of property in a joint family and such inequalities were apparent in case of females. Hence there was an imperative for the legislature to intervene in this system to make it equitable. Thus family system should not be spared only because it is governed by personal sphere of the individuals. As far as the evolution of Hindu joint family is concerned, the following legislative interventions can be considered substantial

Caste Disabilities Removal Act 1850

To discuss the scheme of this Act, it is necessary to look at the background of this Act. Before the passing of this Act, difference of religion between the intestate and the legal heir created a kind of impediment for succession as at that point of time the general rule was that only a Hindu can inherit from another Hindu. Thus if any Hindu changes his religion before succession then he was considered no longer entitled to receive the property. Hence a Hindu, by the reason of his conversion, was subject to disqualification from his property rights. To overcome this problem, the British government brought this particular legislation.16 Now the result after passing of this Act is that a Hindu does not lose his proprietary rights because of the only reason of conversion into another religion. He continues to be a member of the family for the purpose of inheritance of the property. However the Hindu converting into new religion alone is entitled to take benefits of this Act and not his legal heirs. It is indeed landmark legislation with respect to the joint family system and that too in such a time period when the society was hugely divided in terms of race, religion, caste and all. The greatest achievement of this Act is doing away with the existing customary laws or usages leading to the deprivation of proprietary rights on the grounds of caste, religion etc.17

16 Supra note 10 at p. 128

17 Section 1 of this Act reads so much of any law or usage now in force within India as inflicts on any person forfeiture of rights of property, or maybe held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communication of, any religion, or being deprived of his caste shall cease to be enforced as law in any Cminet. The Hindu Womens Right to Property Act 1937

This is perhaps the second incident of legislative intervention into the system of Hindu joint family system. This Act provided that where a Hindu dies intestate leaving behind any property, then the widow or widows of the Hindu dying shall be entitled to same share of the property as a son.18 In case of widow of a predeceased son, she shall inherit the property in the same manner in which the son would inherit if he were alive.19 If the Hindu dying belongs to any other school than the Dayabhaga leaves certain interest in a Hindu joint family property then his widow shall also be entitled to the same interest like that of the male Hindu himself had in the property.20

However any of such interest vested on a Hindu woman shall be treated as limited interest known as Hindu Womens Estate provided however that she shall have the same right of claiming a partition as a male owner.21 This Act has an overriding effect on the ground that this law shall be applicable even if there is a customary law contrary to the provisions of this Act.22

The Supreme Cminet considered this Act in one of the cases. In that case, the one of the coparceners died in the year 1938. This was after the Act came into force. One of the widows in the family demanded partition in the year 1950 and by that time other coparceners also died. The cminet held that she was entitled to receive the property in the form of half share on partition.23

From this decision it became clear that the widow of the coparcener incidentally gets the benefit out of the rule of survivorship which is in operation as between other coparceners.24 The Supreme Cminet got another opportunity to interpret this Act. In that very case a person died in an undivided family. Now, by virtue of the 1937 Act, his widow stepped into his shoes. She then

18 Section 3 (1) reads when a Hindu governed by Dayabhaga school of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same as a son.

19 Proviso (1) to Subsection 3 (1) reads provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son.

20 Sub-section (2) of section 3 states than when a Hindu governed by any school of law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in the joint family property, his widow

shall, subject to the provisions of Sub-section(3), have in the property the same interest as he himself had. 21Sub-section (3) of Section 3.

22 Section 4 reads notwithstanding any rule of Hindu law or custom to the contrary, the provision of Section 3 shall apply where a Hindu dies intestate.23Potti Lakshmi Perumallu v Krishnavenamma, AIR 1965 SC 825

24SubbaRao, G C V, Family Law in India, SubbaRao, T V (Dr) & Kumar, Vijender (2006), S Gogia& Company, Hyderabad, p.81.demanded a partition. However the partition did not take place in metes and bounds before her death. After her death the daughter claimed the property in the capacity of reversioner. However this was objected by the other parties on the ground of survivorship. However the cminet held that daughter was entitled to acquire the property. The cminet observed that the Act of 1937 had no effect in making the widow as a coparcener. However, the 1937 Act allows the widow to enter into the steps of her husband and to claim the property in the capacity of a coparcener. But it cannot be said that this Act makes widow a coparcener in true sense as she is not a coparcener because of her own capacity.25 This Act has been repealed by Hindu Succession Act of 1956.

2.3 Distinctions between a Joint Hindu Family and Coparcenary

A Coparcenary is an institution within a joint family and the primary differences between the two are as follows:

The joint family is a bigger institution and includes a coparcenary within it. Thus, there can be a joint family without a Coparcenary, but there can never exist a coparcenary without a Hindu joint family.

There is no presumption in law that a joint family has any property at all. However, the concept of coparcenary is presently understood to determine the rights and obligations of the members of the joint family over the property. This is the reason why in the joint family the senior most male member is called Karta and he purposes of coparcenary he is described as the Last holder of the property.

Joint family is much broader than the coparcenary and there is no limitation on the number of members in the joint family or the number of generations that it may encompass within it, but a coparcenary is limited to fmine generations of male members only.

A joint family has both males and females as its members but coparcenary under the classical law comprised only male members and no female could be a member of the coparcenary.

In a joint family, members can be added by birth, by adoption or even by marriage to lineal male descendents. In a coparcenary, a member can be added only by birth or a

25Satrughan v Sabujpari, AIR 1967 SC 272valid adoption i.e., all coparceners must be related to each other by blood or by adoption

and no person can become a coparcener by marriage.

All the members in the joint family do not have equal rights over the joint family property. Some have only a right to maintenance out of the joint family funds or a right of residence in the family house, while others may have a right to seek partition and have an interest in the copacenary property. But in the coparcenary all members have an interest in the coparcenary property by birth and have a right to demand a partition of their interest in this property.

Disqualified coparceners are members of joint family but not members of coparcenary even though they may be within fmine generations from the last holder of the property and therefore cannot ask for partition of the property.

Hence, a joint family stands clearly distinguished from a coparcenary and if a joint family is the genus, coparcenary is the species.26

26Kamalakantamohapatra v. Pratap Chandra Mohapatra AIR 2010 Ori.132 Partition

Partition means to divide into parts or to separate. Under Hindu Law, it means a division or splitting of a joint Hindu family into smaller, separate and independent units, with conferment of separate status on the undivided coparceners. A partition refers to a severance of the joint status of coparceners and a division of coparcenary property only.27 The separate property of a coparcener cannot be subjected to a partition as only the owner can claim right over it. No partition is possible unless there are at least two coparceners in a joint family. No partition can take place, if there is only one coparcener, he would be called a sole surviving coparcener.

Persons entitled to ask for Partition

General rule is that coparceners have a right to demand a partition and destruct their joint status. However, a partition can be demanded in certain situations by an alienee or a purchaser, in the execution of a decree of cminet of the undivided share of a coparcener.

3.2.1.1 Alienee or Purchaser in Execution of a Cminets Decree

Since these persons are strangers to the family, they do not have a right to have a joint possession of the property with the rest of the coparceners and are entitled to demarcate only the share that they are entitled to.28 This partition will not have adverse effect on the share of the rest of the coparceners, who would continue to be members of the joint family as before.

3.2.1.2 Coparceners

A coparcener, who is major and of sound mind, can demand a partition and specification of his share from the Karta. It is one of his inherent rights and what he does by demanding partition is simply asking for a demarcation and specification of what exactly belongs to him exclusively and for a right to deal with it as a separate person. He need not give any explanation or justification for seeking partition, nor is the Karta legally entitled to seek the same.29 If the Karta does not give in to the demand of partition made by the coparcener, such a coparcener can go to the cminet and institute a suit for partition.

3.2.1.3 Minor Coparcener

Though a minor coparcener is equal in ownership with a major coparcener but he does not have a right to demand a partition from the father or the Karta. But this does not mean that at his instance, no partition can be affected. The minor can file a suit for partition against the Karta, not personally, but through a next friend. In these cases, the cminet acts as parenspartriae and assumes a very important role.30 The cminet has to be convinced in such cases that the partition would be in the interests of the minor and not affecting a partition would adversely affect his interest.

28D. OdabbasappaBasappaBelavigiv. GadigeppaVerappanelogal, (2003) ILR 4 Kant 2987. 29Satyajeet A. Desai, Mulla Hindu Law, 491- 492, (21st ed. 2013). 30RangaThatachariv.Srinivasa, (1927) ILR 50 Mad 866.Conversion

As the term Hindu Joint Family itself suggests, only a Hindu can be its member. A coparcener who renounces his religion and converts to other religion, immediately ceases to be a coparcener. His share becomes fixed and is to be handed over to him. His rights, in joint family or in the coparcenery property, cannot be forfeited upon his conversion31, but are ascertained and he goes out of the family immediately, after taking his share as it stood on the date of his conversion.

The primary reason is that in India, amongst the multiplicity of family laws, the religion of a person determines which family law will govern his family relations. Till a person is a Hindu, it is the Hindu law that applied to him, but the moment he converts to another religion, his family law also changes.32 So religion is the deciding factor.

3.2.1.5 After Born Son

A son, who was in the womb of his mother at the time of partition and was subsequently born alive, is treated as if he was in existence at that time.33 He has a right to demand re-opening of the partition if no share is reserved for him. The rule is that if the factum of pregnancy is known, either the partition should be deferred till the birth of the child or a share should be kept apart for it. If the child born is a male, his share should be allotted to him, and if the child is not born alive, or is female, such share should be redistributed among all the coparceners. Where the factum of pregnancy is not known and a partition was effected, such an after- born son, has a right to re- open the partition.

3.2.1.6 Adopted- Son

A male child can become a member of a joint family by a valid adoption. From the moment of adoption, he is deemed dead for the natural family and is presumed to be born in the adoptive family, and acquires a right by birth (from the date of adoption), in the joint family property. He has a right to demand a partition and is entitled to a share equal to that of the adoptive father. He is also entitled to have the benefit of survivorship and on the death of the father34; an undivided adopted son takes his share by the doctrine of survivorship.

31Govindv. Abdul, (1903) ILR 25 ALL 546.

32MitterSen Singh v. MaqbulHasan Khan, AIR 1930 PC 251. 33Jagat Krishna v. Ajit Kumar, AIR 1964 Ori 75.

34 Supra Note 1.Persons entitled to get share at the time of Partition

3.2.1.1 Coparcener

All coparcener, whether minor or major, are entitled to get a share at the time of partition.35

Since they had an undivided interest in the property, a partition merely divides their title and gives them exclusive ownership. In partition, it is only the branches that separate, the minors in a particular branch may not be allotted a share, and the same can be held by them in common with their father and brothers.

3.2.1.2 Son born of a voidable or void marriage

A child born of a void or voidable marriage, is a legitimate child of the parents and statutorily entitled to inherit their separate property, yet, at the same time, he cannot inherit from any other relation of the parents. It means that he cannot inherit the property of the brother who is a legitimate offspring of the father. His rights are better than those of an illegitimate child, but inferior to those of a child born of a valid marriage.36 For the purpose of statute, he is considered to be legitimate.

3.2.1.3 Illegitimate Son

Presently, an illegitimate son inherits only from the mother, and not from the father. Under the old law, the rights of an illegitimate son to get a share at the time of partition, depends upon his caste. Among the three castes, Brahimns, Kshatriyas and Vaishyas, an illegitimate son is not a coparcener, but a member of his putative fathers joint family, and therefore, though he is not entitled to a share in the property his rights of maintenance out of the joint family funds are recognized.37

3.2.1.4 Female Members

Although the ownership of the coparcenary property is with the coparceners only, and a female member of the joint family can neither be a coparcener, nor claim any title to the coparcenary property, if and when an actual partition takes place under the classical Hindu law, certain female members in the joint family are entitled to get a share. In the Mitakshara School, three categories of female members (fathers wife; mother and paternal grandmother) are to be given a

35RadhamaniBhaiyaninv. DaibakarBhaiya, AIR 1991 Pat 91.36SHantaramv. Dugubai, AIR 1987 Bom 182.

37Vellayappav. Natarajan, (1931) 58 IA 402.share. They cannot demand a partition of the property themselves.38 But if partition has taken place and she is not given a share, then she is empowered to reopen the partition and claim her share.

3.3 Rules for calculation of Shares

On a partition among the members of a joint family, all the members may effect a division among themselves, or only the branches may separate. The following rules39 are to be observed while calculating the shares of the members who separate:

(i) A partition has to be effected between two generations as the first step, for example, between a father and his sons.

(ii) The shares are to be so calculated that the share of the father on the one hand, and the share of each of the son on the other, are absolutely equal.

(iii) The father takes the share as his exclusive or separate property with respect to the sons, while the son takes it as coparcenary property when he has male issues. In the absence of any male issue, he takes the property as a sole surviving coparcener.

(iv) Where one son dies during the lifetime of the father and leaves behind male issues, the branch of the deceased son takes the share that he would have taken had he been alive.

(v) where a joint family comprises only brothers, each of them takes an equal share. This is called a per capita distribution.

(vi) Each branch takes the property as per stripes (according to the stock), but the members of each branch will take per capita as regards each other.

(vii) When female members, who are entitled to get a share, are present, they must be given a share at the time of partition.

In nutshell, the fundamental principle of partition is that every co- sharer be given property of

equal value, having similar potential.

38Supra Note, 6.

39 Supra Note 1.The Hindu Succession (Amendment) Act, 2005

The Amendment Act, 2005 is a progressive and remarkable step towards gender justice. The Amendment dilutes patriarchal system prevailing in Hindu society which has been considered as a sminece of discrimination among Hindu male and female. It also gives a serious blow to the Mitakshara coparcenary system, strengthening the notion of patriarchy in Hindu society. In other words, by this Amendment Act Indian Parliament has made an attempt to diminish discrimination between son and daughter in respect to succession of ancestral property. Under Mitakshara system of law, the whole property of any Hindu male is divided into self acquired and ancestral property. In respect of intestate succession of self acquired property the law is uniform for both son and daughter. However, the law of intestate succession for ancestral property discriminates between son and daughter. The Amendment Act, 2005 tries to encounter inequality provisions at several fronts e.g. agriculture lands, the Mitakshara coparcenary property, pious obligation of son, parental dwelling house and certain widows right.

The first most important change brought by this Amendment Act, 2005 is the substitution of a new section 6, which provides that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as a son.40

40Section 6(1) says that: on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall-(a) By birth become a coparcener in her own right in the same manner as the son;(b) Have the same right in the coparcenary property as she would have had if she had been a son:(c) Be a subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener.Secondly, on the death of a Hindu having interest in coparcenary property, such property would devolve either by testamentary or intestate succession as the case may be but not by survivorship41.

Thirdly, this Amendment also removes the concept of pious obligation of son42 etc. which was giving special status to son in comparison to daughter.

5.2.1. Introduction of daughters as coparceners

Since the daughter has been made a coparcener by way of the amendment she has been put at par with the son and gets a birth right in the ancestral property owned by the coparcenary. For example, the daughter would have a birth right in the property separately owned by her paternal grand-father, and if he dies intestate leaving behind his son (the father of the daughter) then the daughter shall have an interest in the said property as a coparcener and she would be entitled for partition along with the right to demand partition from her father.

According to this amendment if the daughter dies intestate; her interest in coparcenary would devolve by succession in accordance with section 1543 of the HINDU SUCCESSION ACT, 1956 and if the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner and after her death, if she dies intestate shall devolve upon her heirs as per section 1544. Further, the daughter now has the right to dispose of her interest in coparcenary by making a will and if she is a lone heir she shall become absolute owner of the property and shall also have a right to alienate it during her life time.

This amendment also created a right to have a share in the joint property during the partition favmine of children of the daughter and her pre-deceased daughter, in case of their death. The said heirs, not being coparceners, would not have right to demand partition but they would be entitled to their share as provided in amended section 6 of the Hindu Succession Act, 1956 .

41 Section 6(3): The coparcenary property of a Hindu male who dies after the commencement of the Act without leaving behind him any female heirs (or male heirs who claim through certain female relatives) will devolve upon the remaining male coparceners equally. This is something called survivorship. It is an exception to the general rule of succession.

42Section 6(4): The doctrine of the pious obligation, under which the coparceners were bound to honmine the debits incurred by the father, grandfather or great grandfather.43 Section 15 is regarding General rules of succession in the case of female Hindus.

44Ibid.

Important Adjudications by the Apex Cminet

Since the amendment Act, there it was expected that women approaching the Cminets to ascertain their right in the coparcenary property.

The Supreme Cminet in the case of Sheela Devi and Ors.v. Lal Chand and Anr.45dealt with the question of right of a coparcener of a Mitakshara family under the old Hindu Law vis- a`-visHindu Succession Act, 1956 . The contention raised therein that the provisions of the Amendment Act, 2005 will have no application as the succession had opened in 1989 was negatived, holding:

The Act indisputably would prevail over the old Hindu Law. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, SohanLal will also derive the benefit thereof. So far as the Second son SohanLal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956 . Thus, it was the half share in the property of Babu Ram, which would devolve upon all his heirs and legal representatives as at least one of his sons was born prior to coming into force of the Act.

In M. Yogendra and Ors.v.Leelamma N. and Ors.46, the Supreme Cminet held that

The Act indisputably would prevail over the Hindu Law. Imay notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application.45Sheela Devi and Ors.v. Lal Chand and Anr., 2007 (1) MLJ 797 (SC).46M. Yogendra and Ors. v.. Leelamma N. and Ors, 2010 (1) ALL MR (SC) 490.Iaccordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession opened before the Act. Section 8 of the Act will have no application.

In Anar Devi and Ors.v.Parmeshwari Devi and Ors.47, the Supreme Cminet held that Thus Ihold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., 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, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.

The Supreme Cminet in R. Mahalakshmiv. A.V. Anantharaman and Ors.48held that: Perusal of the aforesaid provision of law makes it abundantly clear that the daughters who have got married prior to 1989 may not have equal share as that of a son but the daughters who got married after 1989 would have equal share as that of a son. In other words, daughters who got married after 1989 would be treated at par with son having the same share in the property.

In G. Sekarv.Geetha and Ors49, the Supreme Cminet held that It is, therefore, evident that the

Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in

47Anar Devi and Ors.v. Parmeshwari Devi and Ors, SC 4171 (2006).48R. Mahalakshmiv. A.V. Anantharaman and Ors, (2009) 9 SCC 52.

49 G. Sekarv.Geetha and Ors, 2009 (5) Mh. L. J. 755 (2).

a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the

Act.

Iare, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment.

Critical Analysis of the 2005 Amendments

The Amendment made to the Hindu Succession Act, 1956 in 2005 has attempted to make the daughter of coparcener a coparcener. By introducing the daughter as a coparcener, the traditional patriarchal nature of the coparcenary has experienced a dramatic change. There is a confusion surrounding the definition of the Mitakshara Coparcenary, in the light of the Hindu Succession (Amendment) Act, 2005 - the position of the daughter of a coparcener is one which needs to be examined.

5.3.1. Lack of Distinction between Married and Unmarried Daughters

Section 6 of the Hindu Succession (Amendment) Act, 2005 clearly states that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. However, the matter is not so simple.

The first problem encountered on examining Section 6 entails the lack of an explicit distinction between married and unmarried daughters. This fact must be emphasized as the married and the unmarried daughter do differ in respects such as membership of family; something which is crucial to the notion of the coparcenary.50 However, working under the assumption that the term daughter, as used in the Act, is inclusive of both married and unmarried daughters, it is necessary to understand that the attempt to distinguish between a married and unmarried daughter might prove futile, with respect to defining the coparcenary.

Exclusion of Adopted Daughters

Another interesting problem while defining the coparcenary concern the inclusion or exclusion of the adopted daughter is concerned. The text of the Section 6 of the Hindu Succession (Amendment) Act, 2005 nowhere mentions any reference to an adopted daughter, but maintains the inclusion of only a daughter by birth, as a part of the coparcenary.51 Thus, for all practical purposes, it is impossible to include the adopted daughter in the new definition of the coparcenary - a matter which needs to be re-examined.

50BinaAgarwal, Womens inheritance: next steps, Article in The Indian Express, October 17, 2005, retrieved from

52Vijender Kumar, Coparcenary Under Hindu Law: Boundaries Redefined, Nalsar Law Review, Vol.4, Number 1, 2008-09, p.37.Womens Rights enshrined in The Hindu Succession Act, 1956

Womens right to property has been substantially improved by the Hindu Succession Act 1956.

The concept of women being entitled to a limited estate when they acquire property by inheritance is abolished and women are entitled to an absolute estate like men when they inherit any property. Again the daughter of a predeceased son and the daughter of a predeceased daughter are raised to a higher rank. They became Class I heirs and get a share along with the son, and other Class I heirs. The daughters are included in the Class I in order to remove the discrimination on the basis of sex. Similarly succession to a womens property or stridhanam of whatever nature is made uniform irrespective of the nature of stridhanam. In the same way the distinction between male and female heirs in the case of succession has been taken away and now they are treated on equal basis if they belong to the same degree of relationship. Women will no longer be disinherited on the ground of unchastity. 52

Section 6

The Hindu Succession Act, 1956 contains provisions affecting the devolution of coparcenary property by survivorship and testamentary succession. Section 6 of the HSA 1956 speaks of retention of coparcenary rather than its abrogation. The opening and the principal part of old section 6 of the Act preserves the concept of Mitakshara coparcenary in its pristine form by providing unequivocally that when a male Hindu dies after the commencement of this Act, having an interest 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. For the applicability of notional partition and for defeating the doctrine of survivorship, the first and the foremost condition is that the deceased has left behind him, either a class-I female heir or a male class-I heir claiming through a female heir. In the class-I category, there were a total of twelve heirs of which eight were females. The ninth heir, whose presence will also have the effect of application of a fictional partition, is a male claiming through a female.

The basic purpose of the inclusion of the concept of notional partition in the Act was to give a better deal to the near female heirs and cognates of the intestate, and to prevent the passing of the

52FLAVIA AGNES, LAW AND GENDER INEQUALITY: THE POLITICS OF WOMENS RIGHTS IN INDIA, 19(1999).interest in the coparcenary property to the coparceners to the exclusion of such female and cognate relations.53

Section 14

Section 14 of the Hindu Succession Act 1956, makes it clear that any property possessed by a female Hindu (whether acquired before of after the commencement of the Act) becomes her absolute property to be held by her as full owner thereof and not as a limited owner. This section recognizes equality of sexes and elevates the women from subservient position in the field of economy to a higher pedestal. Whatever share or property she received in lieu of her maintenance became her absolute property after 1956.54

Section 23 of the HSA, 1956

Under the Hindu Succession Act, 1956, the general provision is that the rights of a son and a daughter are equal. It is without the reference to the type of property available for succession. An impression is created therefore, that whatever may be the type of property, be it a house, cash, clothes, vehicle, shop or even household goods, a daughter has an equal claim over it, not merely of ownership, but also of a right to possess, enjoy and alienate it in the same manner as a son. But where the inherited property comprised a dwelling house that was in the occupation of the male members of the family of the intestate, special rules were provided for its devolution.

By virtue of this provision, ownership of all class- I female heirs in a dwelling house, is narrowed down to a right of residence only. What they are denied is a right to have their shares partitioned and specified, till the male heirs choose to divide their respective shares among themselves. Where the female heir happens to be a daughter, her ownership is without a right of residence and demarcation of her share unless she is unmarried, a widow, or has been deserted by or is separated from her husband. 55

An equitable division of property is what the legislature expects shares to give effect to, but here, there are no rules requiring the brother, who now has a legal permission to enjoy the share of the

53MAINES TREATISE ON HINDU LAW AND USAGE , 1091(1986).54FITZGERALD P.J, SALMOND ON JURISPRUDENCE, 411 (2003).

55 Kanaka LathaMukund, Turmeric Land, womens property rights in Tamil society since early medieval times, XXVII/17,ECONOMIC AND POLITICAL WEEKLY,WS-2(1992).sister, to give her something in return. This free for life use of the share of a female by a male heir, without her consent, is in the nature of deprivation of one for the unjust enrichment of another. This deprivation is of the right of the female, so that the male heirs can live comfortably in her share. Section 23 gives physical possession and enjoyment of her share to the male heirs but they cannot sell her share.56

Amendment Act of 2005 and Womens Rights

The Amendment made in 2005 was based on the recommendations made by the Law

Commission in its 174th Report on Hindu womens property rights. In fact the Commission had taken the subject suomoto because of the glaring discrimination existed in the Mitaksharacoparcenery. It was observed by the Commission that since time immemorial property laws were enacted for the benefit of men. Property rights had been denied to Hindu women just to exercise control over them and to make them subjugated and dependent on men64. In the Joint family women were entitled only to maintenance. On the contrary a son acquires birth right in the ancestral property since he is a coparcener. The retention of the coparcenery excluding females perpetuated the traditional male dominance in the matter of inheritance. The Commission pointed out this inequity and said that it is in fact a fraud on the Constitution. On the basis of these findings the commission recommended for the amendment of Section 6 of the Hindu Succession Act 1956.57

56POONAMPRADHANSAXENA, FAMILY LAW LECTURES FAMILYLaw (2nd ed.2004).57Aggarwal ,Bina, Landmark step to gender equality, THE HINDU , May 25,2005.Woman as Karta

Amendment to section 6 of the Hindu Succession Act since the daughter has been made a coparcener by way of the amendment she has been put at par with the son and gets a birth right in the ancestral property owned by the coparcenary. For example, the daughter would have a birth right in the property separately owned by her paternal grand-father, and if he dies intestate leaving behind his son (the father of the daughter) then the daughter shall have an interest in the said property as a coparcener and she would be entitled for partition along with the right to demand partition from her father. According to this amendment if the daughter dies intestate; her interest in coparcenary would devolve by succession in accordance with section 15 of the HSA and if the daughter is left alone by deceased male coparcener, she shall inherit his entire property of which she would become absolute owner and after her death, if she dies intestate shall devolve upon her heirs as per section 15. Further, the daughter now has the right to dispose of her interest in coparcenary by making a will and if she is a lone heir she shall become absolute owner of the property and shall also have a right to alienate it during her life time.

Section 6 of the amended Act 2005 has completely wiped off all the in equalities in Section 6 of the 1956 Act at one stroke. The females in the joint families are elevated to the status of coparceners having birth right in the ancestral property equal to that of a son. Thus women are given coparcenery status. Some of the discriminations that existed in sections 23 and 4 (2), have been omitted by the 2005 Act.

Another notable achievement of the 2005 Act is the inclusion of all daughters especially married daughters as coparceners in the Joint Family Property. Section.6 of the 2005 Act removed the discrimination between married and unmarried daughters73. It took away the notion that after marriage the daughter belongs only to her husbands family. If her marriage breaks down, she can now return to her natal home as a matter of right and not on the displeasure and mercy of the relatives. This will certainly enhance her self-confidence worth and give her greater bargaining power for herself and her children, in both natal and marital families. Further giving daughters right to ancestral property will also have an impact on changing the inherently unequal power equations between the majority of the husbands and wives even today.58

58Tulsamma v. Sesha Reddy AIR, SC 1944 (1977).

The Law Commission has also addressed the discrimination inherent in the Mitakshara coparcenery under Section 23 of the Hindu Succession Act 1956 Law Commission recommended for the omission of Section 23 from the 1956 Act. The Commission advocated that daughters should get full right of residence in their parental home. It was also viewed by the Commission that the bar on partition by female heirs could take away the true spirit of coparcenery right. Therefore the Commission deleted Section 23 in order to strengthen the coparcenery rights of the Females.59

Consequently Section 23 of the 2005 (Amendment) Act was omitted to confer all daughters (including married daughters) the same rights as sons to reside in or seek partition of the parental dwelling house. By deleting Section 23 of 1956 Act, the amending Act (2005) removed the last remnants of discrimination against women. The objective of the section is to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heir. This section reflected one of the ancient Hindu law tenets that treasured the dwelling house of the family an impartible asset. By the omission of section 23, the daughter can remain a daughter forever and she will not lose her relations with her natal family even after marriage. Similarly the Amendment Act (2005) removed the second discrimination between women themselves on the basis of their marital status. The section was based in favor of unmarried daughters and granted them the right to residence in the dwelling house but only till they were unmarried80. It is pertinent to note here the Supreme Cminets path breaking decision in Savitha Samvedi v. Union of India as early as in 1997. It was held that the differentiation based on marital status is wholly unfair, unreasonable and gender biased, and violates Article 14 of mine Constitution.60

DELETION OF SECTIONS 4(2) AND 23 OF HSA 1956

The omission of Section 4(2) of The Hindu Succession Act 1956 is another achievement of the 2005 amendment Act82. By the deletion of Section 4(2) of The Hindu Succession Act 1956, a highly discriminatory clause of the Hindu Succession Act 1956 has been removed. Now woman also has inheritance rights over agricultural lands just as men. The third achievement of the

59 From Marginalization to empowerment, Action Aid60Study on Status of Women & Agriculture Land Ownership in Gujarat, by Working Group for Women and Land Ownership-Gujarat, 5 (2004).Amendment Act 2005 (The Hindu Succession Act) is the omission of Section 23 of the 1956 Act thereby giving all daughters (married or not) the same rights as sons to reside in or seek partition of the family dwelling house. Section 23 denied residential rights to married daughters in their parental home. Unmarried daughters are given residence rights but could not demand partition. The 2005 Act also deleted Section 4 of 1956

The Hindu Succession Act which barred certain widows of predeceased sons, from inheriting the deceaseds property, if they had remarried. Now the disability is removed and they can also inherit Several scholars contended that Section 23 was per se discriminatory as it provides male heirs with the absolute right to seek partition while making right of female heirs contingent on the right of male heirs. The object is to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heirs. The ancient Hindu law considered the dwelling house as unimpartible asset. The Cminets are also giving verdicts favoring this strong patriarchal concept.60,61 The 2005 Amendment meticulously carried out the changes that are recommended by the Law Commission in its 174th Report. The omission of discriminatory provisions removed the disabilities of the women in the matter of inheritance and have been conferred a status equal to that of men as envisaged under Article 14, 15 and 16 of the Constitution. Moreover when HSA was amended by the 2005 Act it was thought that Hindu women would start litigation claiming their right in the coparceneryproperty.Sekarv.Geetha&Ors the Supreme Cminet made it clear that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right to a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act.

60 Dr. Nitya Rao, Good Women Do Not Inherit Land ,SOCIAL SCIENCE PRESS (2008). 61 174th Report on Property Rights of Women: Proposed Reforms under the Hindu Law, Law Commission of India, May 2000.

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