Hindu Daughter's Equality Right to Succession

Daughters' Property Rights Under the Hindu Succession Act

'The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, 'The Ideal Element in Law,” that 'the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”A.K. Sikri[2]

Abstract

Earlier, a daughter in a joint Hindu family had a right to sustenance, but not in the control and ownership of property. Daughters' right to equality have been recognized by the law by amending the Hindu Succession Act, 1956 by the laudable initiative taken inter alia by the then chief Minister of Andhra Pradesh and the recent amendment of 2005 by the central legislature. But, the law has not been effectively implemented inter alia due to the male chauvinism, lack of awareness among the daughters and the greedy attitude of the brothers. The Hindu Succession (Amendment) Act, 2005 came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 was substituted.  However, even after the amended law came into force and the judicial pronouncements are in favour of the Hindu daughter, the daughter has been still neglected at the first instance, in her own natal family and everywhere, because of blatant disregard and unjustified violation of these provisions. If there is no conscious exercise of the right by the people particularly the daughters, there cannot be effective enforcement of the right created by the law. This article analyses the legal position and narrates a typical case study of the factors affecting the Hindu Daughter's claim for the ancestral property.

The Concept of Law

Justice Krishna Iyyer in Raj Kapoor v. State,[3]states that the superior jurisprudential value of dharma, which is a beautiful blend of the sustaining sense of morality, right conduct, society's enlightened consensus and the binding force of norms so woven as against positive law in the Austinian sense, with an awesome halo and barren autonomy around the legislated text is fruitful area for creative exploration.[4]As was aptly stated the 'superior jurisprudential value of dharma' with 'society's enlightened consensus' will only bring the binding force to law. If there is no conscious exercise of the right by the people particularly the daughters, there cannot be effective enforcement of the right created by the law.

Conceptually, HLA Hart's positive law requires appreciating the realistic position. Fuller's natural law beset with fairness requires that law ought to be fair. However, the law besides being enacted must be effectively implemented and enforced to ensure justice. Unless the men in authority are conscious of the rule of law, and effectively enforce the law, the law cannot bring in the desired social change. Daughters' right to equality have been recognized by the law by amending the Hindu Succession Act, 1956 by the laudable initiative taken inter alia by the then chief Minister of Andhra Pradesh and the recent amendment of 2005 by the central legislature. But, the law has not been effectively implemented inter alia due to the male chauvinism, lack of awareness among the daughters and the greedy attitude of the brothers.

The Coparcenery Property and Coparcener

The concept of ancestral property is in existence since time immemorial. Ordinary meaning of the phrase 'ancestral property' is property which devolves upon a person from his ancestor.[5]Any property inherited of male lineage from the father, father's father or father's father's father i.e. father, grandfather etc., is termed as ancestral property.[6] In other words, property inherited from mother, grandmother, uncle and even brother was not considered as ancestral property. In ancestral property, the right of property accrues to the coparcener on birth. However, such definition becomes now redundant because with the advent of the change in the law and the ordinary meaning of the ancestral property which devolves upon from an ancestor shall only prevail. Justice Chandramauli Kr. Prasad, in RohitChauhan v. Surinder Singh,[7]defined 'coparcenary property' as the property which consists of 'ancestral property'. He also defined coparcener. A coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor.

Historical Background

Throughout Indian history, the framing of all property laws have been exclusively for the benefit of males. Women had been treated as subservient and dependent on male support.[8] The Law Commission held that the right to property is important for the freedom and development of a human being. Prior to the enactment of the Hindu Succession Act, 1956, Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis.

Earlier, a woman in a joint Hindu family had a right to sustenance, but not in the control and ownership of property. As the prevalent Mitakshara system was patri-lineal, the woman was not even given a birthright in the family property like a son. No female member was allowed to be a coparcener. The property devolved according to survivorship, so with every birth and death, the share of every other surviving male either got diminished or enlarged. Females however, were allowed to owe property via succession, but this property should have been the separate property of the benefactor.

Inordinate Delay in rendering Justice to women

The present litigation scenario is that strangely, matters/disputes pertaining to 1937, 1942, 1948 of partitions, settlements and sales detriment to the interest of the daughters have been decided finally in 2018.[9] Moreover, technicalities which must have been in the domain of lawyers pleading the cases, would make the case lost very often on the issues in the pleadings as was held by the Court in Ponnayal @Lakshmi.[10] It was stated by the Apex Court in Ponnayal[11] that the documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents. In that situation it was opined that the Court cannot adjudicate on the issues pertaining to the said documents. The Court categorically maintained that Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings.[12] It may be noted that the pleadings are prepared by the pleaders and if the pleaders are not knowledgeable, the case of the daughters obviously, is lost! Inordinate and unreasonable delay in taking up the matters even at the Apex Court, without any priority being given to the daughters and women, the delayed or 'no justice' is also leading to a pathetic injustice!

Some States with Great Vision

The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.[13]

Several States in India have amended the Hindu Succession Act, 1956 which include the State of Andhra Pradesh, Tamil Nadu[14] etc.,

NTR Amendment - the Hindu Succession (Andhra Pradesh Amendment) Act, 1986

On September 24, 1985 the Andhra Pradesh Legislature had passed a law to confer equal right to property on Hindu women.[15] A new Chapter II-A is inserted into the Hindu Succession Act consisting of Sections. [16]29-A,[17] 29-B and 29-C. Section 29-A. The law stipulates that in a joint family governed by the Mitaksharalaw the daughter shall by birth become a coparcener in her own right and have the same rights in the coparcenary property as she would have had if she had been a son. It makes the daughter's right to ancestral property direct and absolute.

Section 29-B provides for the devolution of such interest by survivorship. Section 29-C gives preferential right to acquire property in certain cases.[18] In view of the insertion of S. 29-A in the Hindu Succession Act by Act (13 of 1986) the statute conferred a right on the daughters and they become coparceners in their own right in the same manner as sons and have the same rights in the coparcenary property.

The Objective of the Daughter's Right in NTR Amendment in AP

The ACT NO. 13 OF 1986, called the NTR Amendment in Andhra Pradesh, the preambulary statement reads as under:  'An  Act  to amend the Hindu Succession Act, 1956 in  its  application  to  the  State  of  Andhra Pradesh. Whereas the Constitution of India has proclaimed equality before the law as a Fundamental Right; And  Whereas  the exclusion of the daughter from participation in coparcenary ownership merely by reason of her sex is contrary thereto; And Whereas such exclusion of the  daughter  has led  to  the creation of the socially pernicious   dowry system with its attendant social ills.And  Whereas this baneful system of dowry has to be eradicated by positive  measures  which  will simultaneously ameliorate the condition of women in the Hindu society;”

The objective and the purpose of enacting the amendment has been laid down in the preamble of the Amending Act. The following points can be culled out of the above viz.,

The Amendment was initiated in view of-

1. the right to equality guaranteed by the Constitution of India
2. discriminating daughters excluding them from coparcenery ownership on the basis of sex is contrary to the fundamental right to equality
3. Such exclusion of the  daughter  has led  to  the creation of the socially pernicious   dowry system with its attendant social ills
4. baneful system of dowry has to be eradicated by positive  measures
5. Such eradication of discrimination will simultaneously ameliorate the condition of women in the Hindu society.

Thus, the vision of the State in making the law must be taken into consideration while interpreting the statute. The Court while enforcing the law must declare the law to meet the purpose and objective of the law to its logical end.

2005 Amendment - the Hindu Succession (Amendment) Act, 1956

The Law Commission, in its 174th Report recommended amendments, mainly in S. 4 and 6 which have been implemented in the Hindu Succession (Amendment) Act, 2005 along with some other finer adjustments. The 204th Law Commission Report, 2008 states that there is no basis or justification for this omission. A reverse discrimination against the male descendants has been created and it suggests that this discrimination be rectified.

The Hindu Succession (Amendment) Act, 2005 came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 was substituted. After substitution, the new Section 6 reads as follows :

"6. Devolution of interest in coparcenary property.-- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities 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:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be.

Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

Beneficial Construction of the Hindu Succession Amended Act, 2005

In view of the change in the public policy, i.e., The Hindu Succession Amendment Act, 2005 providing the equal right to property being given to daughters, the Court might adopt beneficial construction of the statute in the daughter's favour as was done in Danamma @ SumanSurpur&Anr. v. Amar &Ors,[19]and Prakash&Ors. vs. Phulavati&Ors.,[20]

The Apex Court  in Revanasiddappa v. Mallikarjun,[21]while adopting beneficial construction extending the property rights to even the illegitimate children,  observed: 'If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social pattern in different time.'[22]

However, even after several decades of Independence, a Hindu woman has been still neglected at the first instance, in her own natal family and everywhere, because of blatant disregard and unjustified violation of these provisions by some of the personal laws.

Daughter's  Birth Right in Coparceneray Property

Coparcenary is a narrower body than the Joint Hindu family. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it. The coparcenary interest is not static. The interest enlarges by deaths and diminishes by births in the family. The Supreme Court opined that so long as an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son (or daughter) is subsequently born, the alienation made before the birth cannot be questioned.[23]

In State Bank of India v. Ghamandi Ram,[24] in essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary it was observed:

'According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born.[25]

The Supreme Court narrated the incidents of coparcenership as under:

"The incidents of coparcenership under the Mitakshara law are:

• first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common;
• secondly, that such descendants can at any time work out their rights by asking for partition;
• thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest;
• fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common;
• fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and
• sixthly, that the interest of a deceased member lapses on his death to the survivors.”

Hence, the Apex Court made it clear that the right to partition cannot be abrogated. Accordingly, The right was held inherent and can be availed of by any coparcener, now-(then, even the suit for partition was filed in 2002 and the lower Court issued an injunction order against the daughter/coparcener in 2007) even a daughter who is a coparcener.[26]The Supreme Court explained the position of law interpreting section 6 of the Amended Hindu Succession Act. It was observed:

'Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).”[27]

Before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property.[28] But, the moment a son (or daughter) is born, the property becomes a coparcenary property and the son (or daughter) would acquire interest in that and becomes a coparcener.[29]

Daughter's Right on the Touchstone of Equality

In Danamma @ SumanSurpur&Anr.v. Amar &Ors,[30]the Supreme Court dealt, inter-alia, with the dispute of daughter's right in the ancestral property. In the case, the father of the daughter died in 2001,intestate. yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005.The Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not?

The Apex Court observed that the changes in the Law had been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected.[31]The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, 'The Ideal Element in Law,” that 'the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”[32]

The Hindu Succession (Amendment) Act, 2005 substituted S. 6 of the Hindu Succession Act, 1956. The earlier section said that when a male Hindu died after the commencement of the Act, then his property would devolve by survivorship upon the surviving members of the coparcenary if he had an interest in a Mitakshara coparcenary property and not in accordance with the Act. Vide clause (3) of section (6) of the amended act, the property shall by testamentary or intestate succession and the property shall be deemed to have been divided as if a partition had taken place. Now the substitution gives rights to the daughter of a coparcener. The amendment allows the daughter to become a coparcener by birth in her own right in the same manner as sons. It allows her to have the same rights in the coparcenary property as she would have had if she had been a son. With the added power, have come some added responsibilities. Therefore, such daughter will be subject to the same liabilities in respect of the said coparcenary property as that of a son. Moreover the section stipulates that any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. Clause (2) of section 6 gives the power to a Hindu female holding a title to such coparcenary property with the incidents of coparcenary ownership to dispose of the property by testamentary disposition.

Other plus points of the reform are that the daughter is allotted the same share as a son,[33] the share of the pre-deceased son or daughter will be allotted to the surviving child, be it male or female, of such pre-deceased son or daughter , and the share of the pre-deceased child of a pre-deceased son or daughter shall be allotted to the child, be it male or female, of such pre-deceased child of a pre-deceased son or daughter irrespective of whether he was entitled to claim partition or not.[34]

Moreover, S. 30 of the Hindu Succession Act has been amended to allow for the testamentary (by will) disposition of any property which is capable of being so disposed by a male as well as a female in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus.

Therefore, the rights of women as regards property have been duly addressed after the 2005 reformatory amendment. Some scholars on the other hand point out that these reforms go beyond addressing the grievance of women and instead met out reverse discrimination for males by not including the son's daughter's son (SDS) and the daughter's son's son (DSS) within the Class I heirs.

Daughters (Married)Right by Birth

The Apex Court has categorically declared the law as applicable to even married daughters by birth.

In Danamma @ SumanSurpur&Anr.v. Amar &Ors, [35]the Supreme Court took note of Section 6 of the Act, as it stood prior to its amendment and the change in the law by the Amendment Act, 2005. The Supreme Court had disagreed with the findings of the High Court and held that 'amendment to Section 6 vide Amendment Act, 2005, clinches the issue, beyond any pale of doubt, in favor of the Appellant. It was categorically made clear that the amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties as she would have had if it had been son. It further threw light on the case of Prakash&Ors. v. Phulavati&Ors,[36] and State Bank of India v. Ghamandi Ram,[37] and held that the law is well settled now. It was held that 'the right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.' …..

The Supreme Court further explained about the proviso to Section 6(1) and sub-section (5) of Section 6. Accordingly, the proviso was held to have been clearly intended to exclude the transactions referred to therein which may have taken place prior to 20-12-2004 on which date the Bill was introduced. It was held that the explanation cannot permit reopening of partitions which were valid when effected. The Court appreciated the object of giving finality to transactions prior to 20-12-2004 is not to make the main provision retrospective in any manner. However, it was ruled that the object was that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004 could be covered by the Explanation or the proviso in question.

Accordingly, the Supreme Court held that the rights under the amendment (2005) are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. It was observed that disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.

In Prakash v. Phulavati,[38]itself the Supreme Court delineated thatthe rights under the amendment are available to daughters living on the date of amendment, irrespective of when they were born. Thus, the right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

Ganduri Koteshwaramma & Anr.v. Chakiri Yanadi & Anr

InGanduriKoteshwaramma&Anr.v.ChakiriYanadi&Anr.,[39]the appellants and the respondents are siblings being daughters and sons of ChakiriVenkataSwamy. The 1strespondent (plaintiff) filed a suit for partition in the court of Senior Civil Judge, Ongole impleading his father ChakiriVenkataSwamy (1stdefendant), his brother ChakiriAnjiBabu (2nd defendant) and his two sisters - the present appellants - as 3rd and 4th defendant respectively. In respect of schedule properties `A', `C' and `D' - coparcenary property - the plaintiff claimed that he, 1st defendant and 2nd defendant have 1/3rd share each. As regards schedule property `B'--as the property belonged to his mother--he claimed that all the parties have 1/5th equal share.The 1st defendant died in 1993 during the pendency of the suit.

 The trial court declared that plaintiff was entitled to 1/3 rd share in the schedule `A', `C' and `D' properties and further entitled to 1/4th share in the 1/3rd share left by the 1st defendant. As regards schedule property `B' the plaintiff was declared to be entitled to 1/5 th share. The controversy in the present appeal does not relate to schedule `B' property and is confined to schedule `A', `C' and `D' properties. During the pendency of the suit for mesne profits, the Hindu Succession Act has been amended. Having regard to 2005 Amendment Act which we shall refer to appropriately at a later stage, the present appellants (3rd and 4th defendant) made an application for passing the preliminary decree in their favour for partition of schedule properties `A', `C' and `D' into four equal shares; allot one share to each of them by metes and bounds and for delivery of possession.

The trial court, allowed the application and held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and separate possession in schedule properties `A', `C' and `D'. The plaintiff (present respondent no. 1) challenged the order of the trial court in appeal before the Andhra Pradesh High Court. The Single Judge allowed the appeal and set aside the order of the trial court.Hence, the appeal to the Supreme Court.

Justice R.M. Lodhaheld that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

Implementation of the Amended Law –Ineffective

Despite the fact that the property rights have been conferred on the daughters in States like Andhra Pradesh, Tamil Nadu and others long ago in 1980s, there has not been effective implementation of the Law due to several factors. The factors include the male chauvinism, non-recognition of daughters as equal to sons, traditional mentality that marriage secedes the link of daughter from the parents family,  lack of awareness among the daughters and their relatives about the right, daughters soft attitude not to be vigilant to claim for the rights being afraid of the family relations, unheeding and stubborn  attitude of the male and other members in the paternal family would make the daughters silently struggle for the rights.

A Case Study of Steya[40] Family

Late Sri Steya Visvasaneeya Rao has two daughters (married) and two sons (married) leaving several properties behind. Sri Visvasaneeya Rao's wife, the mother had been ailing from cancer. Sri Visvasaneeya Rao himself drove out his eldest son to live separately as the daughter in law had not been giving coffee to the ailing mother in law. Sri Visvasaneeya Rao died intestate. The daughters took their ailing mother to their places to serve her with affection. The opportunist eldest son occupies the parental house. Later, sons took the mother back to the native place for drawing her pension and putting the ailing mother with a maid. The brothers prevailed over the mother and the sisters blackmailing them and fraudulently concealing the contents of documents registered a partition deed. The daughters after somehow coming to know about the actual Registration of the Partition Deed and having failed to convince the brothers for an amicable settlement were forced to issue a notice through a lawyer. The greedy brothers (sons of Steya) did neither realize their mistake nor interested to come forward for an amicable settlement. On the occasion of their mother's death anniversary, the brothers had insulted the sisters and brother's in law stating that 'you had eaten our funeral meal!; as you had killed us by issuing us lawyer notice!”.

Several attempts for any compromise in the presence of elders 1) Prof. Dr.SteyaVenkateswara Rao (the eldest brother of Late Sri SteyaVisvasaneeya Rao) and an Advocate, and 2) a family friend, have resulted in vain. The brothers have not been  maintaining talking terms (as they are in safe side of having deceptively obtaining the signatures of the sisters signing the document without verification of any contents of the Partition Deed Registered)  and not at all heeding to any mediating elders for settlement. The brothers have started ridiculing and defaming the sisters' families that 'the sisters are claiming property,' 'dragging the brothers to the Court,' and comparing the sisters and brothers in law to 'jackals', and that 'the sisters family members have no senses,'. The brothers would insultingly make statements to the nieces and nephews that 'we can also ensure to adversely affect your education dragging you to wander to the Court.”

Thus, there are far reaching consequences of straining the family relations due to the blind fold registrations of the Partition Deeds or Transfer of the coparcenery property by the Registrars who do not generally perform their duty of conducting minimum enquiry about- the number of family members, living coparceners, passing of consideration (which is generally evaded by stating that the consideration is mentioned in the Partition Deeds as formality). However, the Steya sisters and their children initiated legal battle in the civil court.  

Ignorance of Law of Steya Sisters

Most of the daughters are ignorant of their right to equal share in the coparcenery property so also the Vuyyru daughters. They are even afraid of the consequences of the male chauvinism for claiming the property rights. The greedy male members of the family would generally say and mean that the daughter when once married secedes from the family and especially the family property. Some of thedaughters feel that 'claiming the equal right to property would tantamount to committing sin'! The daughters are contended with what had been assured of to them gifted for as 'pasupukumkuma' at the time of marriage.

Exploitation by the Male Coparceners

Some of the elders, the karta during their life time neglect and do not 'will' away the property due to which the daughters mostly suffer. It is so because the property is in the possession and enjoyment of the sons and unless the parents take special care of partitioning the property. Had the elders or the karta of the family been assertive to curtly follow the rule of law relating to the equality right of the daughters and would partition the property during their life time,  to some extent avoid litigation.

Sentimental Black Mail of the Steya Brothers

Some brothers resort to the sentimental black mail by stating that 'the property might be disbursed assuming that we are dead.' The brothers resort to vehemently condemn the aged parents. They go to the extent of leaving the parents for their own mercy or leave mother at the mercy of the maids as the daughters in law are not prepared to serve the mother in law when the mother is ailing with incurable disease like cancer. The greedy attitude of the brothers whose selfishness would go to the extent of criticizing the elders and resorting to blackmail the aged and ailing elders by stating to give away the property to daughter treating the brothers dead. The sisters are prepared to give up and sacrifice their right even at the cost of foregoing the property right of their kith and kin mostly because of the sentimental blackmail of the greedy brothers or their deceptive or high handed attitude. Some of the brothers canvass against the sisters falsely alleging that they are dragged to the Court concealing and suppressing their deceptive and adamant attitude among the relatives.

Crucial official -the Sub Registrar

The instrumentality of the state whose initiative would ensure the effective implementation of the new rights conferred on daughters is the Registrar or the Sub Registrar.  The Registering Authority who must have acted with judicious application of mind, with full knowledge of the law (about the Hindu Succession Amendment Act and the rulings of the Hon'ble Supreme Court especially Prakash& Others. v. Phulavati& Others,[41]Danamma @ SumanSurpur& Another v. Amar & Others,[42]had acted without minimum verification and enquiry.

The Partition Deeds have been Registered 'mechanically signing away the fundamental rights of the innocent and deserving daughters and their kin' and opposed to public policy. The Registrations are done without the knowledge of the parties, without passing of the consideration mentioned in the Partition Deed, or without having the knowledge and consent of all the stake/share holders. Such Registrations done thus not only are violating the law vitiating the fundamental rights of the deserving stake/share holders of the property but are against the public policy leading to far reaching consequences of disrupted family relations. 

Nothing had been verified including the fact that whether the contents of the document were known to the signatories or not, whether the consideration of money written in the document has been passed or not, as to how many stakeholders are there deserving the share in the property and in view of the change in the legal position whether all the share holders sharing the property equally or not….!

The Sub Registrar offices in most of the Districts are not under the surveillance of CC Cameras. Mostly, the transactions at the Registrar offices are done at the instance of the private scribes and mediators. Therefore, there has been scope for blind transactions at the instance of greedy selfish brothers carrying on the transactions without transparency and concealing of the facts or proper verification of facts. 

If the daughters without proper knowledge or being otherwise made to believe would sign on the documents without looking into the contents of the document, the brothers take the advantage and would claim that the daughters had waived their right in the share. But, the Apex Court has held waiver shall be an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.[43]

Suggestive Conclusion

Therefore, in order to ensure rendering of justice to the daughters and to ensure effective implementation of the equality right to property the writ jurisdiction may be extended to the daughters under Article 226 which may be extended under the expression any other purpose. In public interest Hon'bleHigher Courts may be pleased to issue directions to all the concerned authorities as under-

i) to conduct the minimum enquiry and verification about the number of share holders in the partition etc.,

ii) For the constitution and opening a free Legal Services Cell at the Registrar Office premises and extension of the Free Legal Aid service cell. The Cell may be approached at the option of the parties, whose members would extend free service to the parties, verify and advise the registering parties about the Registration. The free Legal Services Cell under the supervision of the District Legal Services Authority may be directed to conduct Awareness Generation sessions and provide Free Legal Aid Services on the rights to equal share in the property making such enquiries necessary regarding the nature of the property being registered and the stake holders especially in order to ensure the daughters fundamental right to the share and their kin.

iii) The Registrar also may be directed to refer the matter to the Free Legal Aid committees whose consultation is likely to ensure the effective implementation of the rights of the women.

It is hoped that with the implementation of the measures suggested as above there is scope for the right of the Hindu Daughters and their kin in turn may be exercised and the objective of the amended law will be fulfilled.

***** Reference # 73 J -2019-01-0X-01

[1] Principal, Kristu Jayanti College of Law, Bengaluru and visiting Professor Alliance University, Bengaluru, e mail: mohanraobolla9@gmail.com

[2]Danamma @ SumanSurpur&Anr. v. Amar &Ors, 2018 (1) Scale 657

[3] Raj Kapoor vs. State AIR 1980 SC 258- In this case a unique pro bono publico prosecution was launched by a private         complainant, the President of a Youth Organisation devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name Satyam, Sivam, Sundaram, under Ss. 282, 283 and 34 Indian Penal Code (hereinafter referred to as the Penal Code) for alleged punitive prurience, moral depravity and shocking erosion of public decency. It was inter alia observed: Art, morals and law's manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State made straight-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics.

[4]Ibid.

[5]See Raja ChelikaniVenkayyammaGaru v. Raja ChelikaniVenkataramcmayyamma (1902) L.R. 29 I.A. 156, MaktulvsMst. Manbhari& Others AIR 1958 SC 918

[6]Mangamal @ ThulasiAndAnr.vsT.B.Raju And Ors. decided on 19 April, 2018, available at https://indiankanoon.org/doc/70913397/

[7]RohitChauhan v. Surinder Singh, (2013) 9 SCC 419

[8] "पितारक�षतिकौमारेभर�तारक�षतियौवने।रक�षन�तिस�थाविरेप�त�राःनस�त�रीस�वातन�त�र�यमर�हति।। (Manu Smriti.9.3).PitahRakshathiKoumare, PatiRakshathiYouvannePuthroRakshathiVardhaykye Na sthreeswathanthramarhati"- - Woman does not deserve freedom -Manu Smriti 9.3

[9]L. Ponnayal @ Lakshmi v. Karuppannan Dead Through Lr decided by Justice L.Visvasaneeya Rao on 17 September, 2018 available at https://www.sci.gov.in/supremecourt/2016/26667/26667_2016_Judgement_17-Sep-2018.pdf, Mangamal @ Thulasi And Anr. v.T.B.Raju And Ors. decided by Justice RK Agarwal, on 19 April, 2018 available at https://indiankanoon.org/doc/70913397/

[10]Ibid.

[11] L. Ponnayal @ Lakshmi v. Karuppannan Dead Through Lr available at https://www.sci.gov.in/supremecourt/2016/26667/26667_2016_Judgement_17-Sep-2018.pdf

[12]Ibid.

[13]Danamma @ SumanSurpur&Anr. v. Amar &Ors, 2018 (1) Scale 657

[14] In the State of Tamil Nadu, in order to give equal position to the females in ancestral property, in the year 1989, the State Government enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989 effective from March 25, 1989 which brought an amendment in the Hindu Succession Act, 1956 (for brevity 'the Act”) by adding Section 29-A vide Chapter II-A under the heading of Succession by Survivorship. See also Mangamal @ Thulasi and another  v. T.B.Raju and Others decided on 19 April, 2018, available at https://indiankanoon.org/doc/70913397/

[15] See India Today, May 31, 1984 'Andhra Pradesh CM N.T. Rama Rao seeks to give women equal share in paternal property,' available at https://www.indiatoday.in/magazine/indiascope/story/19840815-andhra-pradesh-cm-n.t.-rama-rao-seeks-to-give-women-equal-share-in-paternal-property-803230-1984-05-31

[16]ACT NO. 13 OF 1986- the Hindu Succession ( Amendment ) Act, 1986.

[17] "29-A. Equal rights to daughter in coparcenary property: Notwithstanding anything contained in Section 6 of this Act--(i) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and having the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same . liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son;

Provided that the share which a predeceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter;

Provided further that the share allottable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986."

[18]S. Narayana Reddy and Others v. S. Sai Reddy AIR 1990 AP 263

[19] 2018 (1) Scale 657

[20](2016) 2 SCC 36. In the batch of matters the Court was to interpret Hindu Succession (Amendment) Act, 2005 ('the Amendment Act').The respondent-plaintiff, Phulavati filed suitbeing O.S. No.12/1992 before Additional Civil Judge (SeniorDivision), Belgaum for partition and separate possession tothe extent of 1/7th share in the suit properties in Schedule'A' to 'G' except property bearing CTS No.3241 mentionedin Schedule 'A' in which the share sought was 1/28th.The Court clarified that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. It was held that the Act indisputably would prevail over the old Hindu Law. We may 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. 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.the proviso toSection 6(1) and sub-section (5) of Section 6 clearly intendto exclude the transactions referred to therein which mayhave taken place prior to 20th December, 2004 on whichdate the Bill was introduced. Explanation cannot permitreopening of partitions which were valid when effected.

[21]Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1

[22]Ibid

[23]RohitChauhan v. Surinder Singh, (2013) 9 SCC 419

[24]AIR 1969 SC 1330

[25] See Mitakshara, Ch. I. 1-27

[26]Danamma @SumanSurpur&Anr. v. Amar &Ors, 2018 (1) Scale 657

[27] Ibid.

[28]RohitChauhan v. Surinder Singh, (2013) 9 SCC 419

[29] Ibid.

[30] 2018 (1) Scale 657

[31]Danamma @SumanSurpur&Anr. v. Amar &Ors, 2018 (1) Scale 657

[32]Ibid.

[33]Danamma @ SumanSurpur&Anr.v. Amar &Ors, 2018 (1) Scale 657

[34]Danamma @ SumanSurpur&Anr.v. Amar &Ors, 2018 (1) Scale 657, also available at https://www.sci.gov.in/supremecourt/2013/3186/3186_2013_Judgement_01-Feb-2018.pdf

[35] 2018 (1) Scale 657

[36](2016) 2 SCC 36

[37]AIR 1969 SC 1330

[38](2016) 2 SCC 36

[39](2011) 9 SCC 788

[40] The name of the family and the other names have been changed. The family is closely acquainted with the author. The case study thus is live and prospective. The suit has been filed in East Godavari District, Eluru, Andhra Pradesh and numbering is in process.

[41] (2016) 2 SCC 36

[42] 2018 (1) SCALE 657

[43]Vide: Dawsons Bank Ltd. v. Nippon MenkwaKabushihiKaish, AIR 1935 PC 79; BashesharNath v. Commissioner of Income-tax, Delhi and Rajasthan &Anr., AIR 1959 SC 149; MademsettySatyanarayana v. G. YellojiRao&Ors., AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S. B. SardarRanjit Singh, AIR 1968 SC 933; JaswantsinghMathurasingh&Anr. v. Ahmedabad Municipal Corporation &Ors., (1992) Suppl 1 SCC 5; M/s. Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062; and Krishna Bahadur v. M/s. Purna Theatre &Ors., AIR 2004 SC 4282