Hindu Succession Act before & after 2005 Amendment: Brief analysis of judgments

Analysis of judgements on Hindu succession Act 1956 right from 1956 to 2016 i.e. Before 2005 amendment and after amendment.

Hindu succession Act 1956 is enacted with an object of codifying Hindu law.

Section 6 of Hindu Succession Act 1956 before 2005 amendment was as under.

"S. 6. Devolution of interest in coparcenary property.-- When a male Hindu dies after the commencement of this act , having at the time of his death an interest in a Mithakshara 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.

Provided that, if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mithakshara Coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship. Explanation 1.--For the purposes of this section, the interest of a Hindu

 Mithakshara 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. Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

The act gave right to property to female heirs in the share of the deceased.

Here we have to understand that A Hindu has got two types of share one is coparcenary share and the other his personal share.

Coparcenary Share: Is when A Hindu gets share in the partition between him and his father? It is coparcenary share.

Personal Share:

Is when a Hindu gets share in the partition between him and his sons, this is his personal share.

This personal share is absolute and in this share the 1956 act gave right to female heirs and section 8 is engrafted for the purpose. Earlier to that as per old Hindu law this personal share was also succeeded by survivorship.

Section 6 is interpreted by three judges full bench judgement in Gurupadappa Khandappa case wherein it is held that when A Hindu dies a partition is to be effected thinking as if he is alive. Then he is allotted share in partition between him and his other coparceners i.e. sons which is his personal share. Personal share of Hindu is divided among his class I heirs.

This judgement set up notional partition theory as provided in explanation I which provides to effect partition as if the deceased Hindu is alive. When he is alive his share with others coparceners will be divided. His other coparceners include the sons in those days.

This full bench judgement of three judges is approved by another three judge’s bench in STATE OF MAHARASHTRA Vs.  NARAYAN RAO SHAM RAO DESHMUKH AND OTHERS approved the ratio decidendi of the Gurupadappa case.

This judgment ruled the sphere till amendment. Even after 2005 amendment also the provision 3 and its explanation provides for notional partition and this judgement becomes relevant.

There are number of judgments delivered relying on this judgment. Among them few are given below.

1. RAJ RANI Vs CHIEF SETTLEMENT COMMISSIONER
2. THIMMAIAH Vs Ningamma
3. Sathyapremamanjunathagowda Vs CONTROLLER OF ESTATE DUTY KARNATAKA
4. ADDITIONAL COMMISSIONER OF INCOME TAX, LUCKNOW Vs MAHARANI RAJ LAXMI DEVI
5. COMMISSIONER OF WEALTH Tax, KANPUR Vs CHANDER SEN
6. State Of Maharashtra Vs NARAYAN RAO SHAM RAO DESHMUKH
7. P.S.Sairam Vs P.S.Rama Rao Pisey
8. Anari Devi and Ors Vs Parmeshwari Devi and Ors
9. Sugalabai Vs Gundappa A.Maradi
10. BASAVARAJAPPA Vs GURUBASAMMA
11. Baljinder Singh Vs Rattan Singh
12. MAN SINGH Vs Ram Kala
13. Y. NAGARAJ Vs JALAJAKSHI
14. RAM JIVAN VS. PHOOLA

So any judgments contrary to the said judgments are per incuriam and not laying down binding precedent.

Sheela Devi and Others Vs Lal Chand and Another
BHANWAR SINGH Vs PURAN AND OTHERS
G. SEKAR Vs GEETHA AND OTHERS
M. YOGENDRA AND OTHERS Vs LEELAMMA N. AND OTHERS.

So the following judgments are not binding precedents to the extent they are against ratio decidendi laid down in Gurupad case.

Sheela Devi and other judgments are delivered on the wrong premise and relying on wrong context. In Sheela Devi case the bench relied mainly on income tax Vs Chander Sen case, to come to the conclusion that coparcenary is abolished by the 1956 hs act and notional partition as per explanation I is given a go against authoritative finding given by full bench judgment of Gurupadappa Khandappa. Therefore the Sheeladevi and other judgements of S.B.Sinha led bench are and delivered wrongly applying the Chander Sen case to coparcenary property.

To say so we have to see here the facts of the Chander Sen case, in that case, One Rangi Lal and his sons Chander Sen constituted a Hindu undivided family. This family had some immovable property and the business carried on in the name of Khushi Ram Rangi Lal. On 10/10/1961, there was a partial partition in the family by which the business was divided between the father and the son, and thereafter, it was carried on by a partnership consisting of the two. The firm was assessed to income-tax as a registered firm and the two partners were separately assessed in respect of their share of income. The house property of the family continued to remain joint. On 17/07/1965, Rangilal died leaving behind his son, Chander Sen, and his grandsons i.e. the sons of Chander Sen. His wife and mother predeceased him and he had no Other issue except Chander Sen. On his death there was a credit balance of Rs. 1,85,043.00 in his account in the books of -the firm. For the assessment year 1966-67 (valuation date 3/10/1965), Chander Sen, who constituted a joint family with his own sons, filed a return of his net wealth.

The return included the property of the family which on the death of Rangi Lal passed on to Chander Sen by survivorship and also the assets of the business which devolved upon Chander Sen on the death of his father. The sum of Rs. 1,85,043 standing to the credit of Rangi Lal was not included in the net wealth of the family of Chander Sen (hereinafter referred to as 'the assessee-family') on the ground that this amount devolved on Chander Sen in his individual capacity and was not the property of the assessee-family. The Wealth-tax Officer did not accept this contention and held that the sum of Rs. 1,85,043 also belonged to the assessee-family.

So the court held that the sum of Rs.1,85,043 is succeeded by the son in his individual capacity and is to be assessed as such and not as joint family assets.

So Sheeladevi and other judgments delivered on the basis of the Sheeladevi case are not binding precedents.

All these judgments are delivered on the premise that coparcenary came to be abolished by the 1956 act. Coparcenary is not abolished. This is clear from the recent parliament consultative committee proceedings. They did not favour abolishing of coparcenary fearing backlash. If the Sheeladevi and other cases on the line are accepted it reveals that son born before 1956 is coparcener and son born after 1956 is not coparcener as observed by the Sheeladevi case against the authoritative judgment of Gurupadappa Khandappa case.

If coparcenary is abolished the amendments brought by Andhra Pradesh in 1985, Tamilnadu in 1989, Karnataka in 1994 and Maharashtra brought to Hindu succession act declaring unmarried daughters coparceners will be purposeless.

These judgments were by division bench and against the Gurupadappa Khandappa case during 2006 to 12, but these judgements are not considered binding by the benches headed by other judges and gave judgment on the line of Gurupadappa case.

BALJINDER SINGH Vs Rattan Singh
MAN SINGH (D) BY L.RS. Vs. RAM KALA (D) BY L.RS. AND OTHERS

The 2005 amended section is as under

Section 6 of Hindu succession act 1956 after 2005 amendment

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 Mithakshara 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 Mithakshara 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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court Shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this Sub-Section Shall affect -

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation Shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.-For the purposes of Clause (a), the expression "son", "grandson" or "great-grandson" Shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section Shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. -For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, (1)908 ((1)6 of (1)908) or partition effected by a decree of a court.

After the 2005 amendment apex court delivered following judgment and they dealt with section 6 in the following judgments

In Anardevi there was no claim by daughters as coparceners under the 2005 amendment so this is not authority on section 6 after amendment.

In SHEELA DEVI AND OTHERS Vs. LAL CHAND AND ANOTHER no discussion regarding applicability of the amendment.

In BHANWAR SINGH Vs PURAN AND OTHERS, it is held that since succession opened in 1989 the amended provision is not applicable but court did not discuss the object of the act and provisions of the amended provisions. This is based on principle once vested cannot be divested. This principle is not applicable to the joint family.

In this regard the apex court  SATRUGHAN ISSER VS SABUJPARI

Coram:- J. C. SHAH, K. N. WANCHOO, R. S. BACHAWAT JJ. Full bench
Decided on August 04,1966

Held that

A Hindu coparcenary under the Mithakshara School consists of males alone: it includes only those members who acquire by birth, or adoption interest in the coparcenary property. The essence of coparcenary property is unity of ownership which is vested in the whole body of coparceners. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners: it is only on partition that the coparcener can claim that he has become entitled to a definite share. The two principal incidents of coparcenary property are: that the interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a coparcener acquires an interest in the coparcenary property by birth, not representing his father but in his own independent right acquired by birth.

PRIVY COUNCIL
SEN J.
Decided on November 12,1930
ANAND PRAKASH Vs NARAIN DAS-DORI LAL

It is held that The share is indefinite and fluctuating in extent. The ownership of the coparcenary property is vested in the whole body of coparceners. No individual member can claim that he has a definite share.

In CONTROLLER OF ESTATE. DUTY, MADRAS Vs ALLADI KUPPUSWAMY

Coram :- N. L. UNTWALIA, P. N. BHAGWATI, S. MURTAZA FAZL ALI JJ.
Decided on May 03,1977

Court referring to the Satrughan Isser v. Smt. Sabujpari, (1967) 1 SCR 7 : (AIR 1967 SC 272) this Court pointed out that the interest conferred on a Hindu widow arose by statutory substitution and the Act of 1937 introduced changes which were alien to the structure of a Hindu coparcenary. IN this connection the Court observed as follows:

"The Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the structure of a coparcenary. The interest of the widow aren’t by inheritance nor by survivorship, but by statutory substitution: xxx

G. SEKAR Vs. GEETHA AND OTHERS, was dealing with section 23, R. MAHALAKSHMI Vs A.V. ANANTHARAMAN AND OTHERS, was dealing with Tamil Nadu amendment, G. VARALAKSHMI AND ANOTHER Vs. G. SRINIVASA RAO (D) THRU LRS. AND ANOTHER dealing section 23, so not relevant for section 6.

In M. YOGENDRA AND OTHERS Vs. LEELAMMA N. AND OTHERS, was dealing with application of amendment but held that the son born after 1956 is not coparcener relying on the judgments G.Shekar which apart from others relied on Sheela Devi are decided in wrong context believing to be coparcenary is abolished after 1956 against the Gurupadappa Khandappa case. So not laying down correct position of law and not binding precedent.

In MAN SINGH (D) BY L.RS.  Vs. RAM KALA (D) BY L.RS. AND OTHERS the court did not deal with amendment and its effect.

For the First time, the effect of 2005 amendment was discussed The Hon’ble apex court in  GANDURI KOTESHWARAMMA case Decided by R.M. Lodha, J; Jagdish Singh Khehar, J as he then was on : 12-10-2011 and

Held in a case where

Son had filed suit against father and brothers and sisters. The father died in 1993. The Karnataka amendment came into force in 1994. The daughters married prior to amended act. They are claiming enhanced share under 2005 act and the same is granted by the apex court.

The bench Held that

“14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mithakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to Sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to Sub-section (5) of Section 6, for determining the non-applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the Appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.

Court Relied on S. Sai Reddy v. S. Narayan Reddy, (1991) 3 SCC 647 for amendment of preliminary decree to be modified as per the new act allotting daughter equal to that of son and Relied on Phoolchand full bench court case held that more than one preliminary decree can be passed in changed circumstance.

In the Ganduri Koteshwaramma case object of the act was observed

".......The retention of the Mithakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mithakshara coparcenary property.

ROHIT CHAUHAN Vs SURINDER SINGH AND OTHERS not dealt with amendment,

SHASIDHAR Vs ASHWINI UMA MATHAD not decided the matter finally, remanded matter.

BALHAR SINGH Vs SARWAN SINGH AND OTHERS in this case the court taking cognizance of the difference of opinion in different judgments and wrongly relying on Chander Sen case which dealt with separated father property, referred to the larger bench but unfortunately the larger bench disposed off the matter as the parties moved memo to withdraw the case.

PRAKASH AND OTHERS Vs PHULAVATI AND OTHERS decided by A.K. Goel and Anil R. Dave, JJ. Decided on : 16-10-2015

Held daughters must be alive and father must be alive to apply the amendment. Daughters must be alive is law laid down by the bench as no other judgment is dealt with this aspect till then but father must be alive is against the Ganduri and Shashidhar cases supra.

This judgment is displacing the daughters of AP, Tamil Nadu, Karnataka and Maharashtra where unmarried daughters were already coparceners and after 2005 amendment they lose that character as per this finding. This was not the intention of the parliament. The court did not discuss the object of the act. More over the Ganduri Koteshwaramma case was binding on the court. So the Prakash Vs Phulavati case is not laying binding law.

Prakash Vs Phulavati case is decided believing vesting and no divesting. Applying rule of vesting to joint family is against the full bench judgment discussed supra.

Prakash Vs Phulavati case is decided on the basis of the Sheela Devi and other series of judgments which are decided under belief of coparcenary abolished after 1956 and all those judgments are against Gurupadappa Khandappa full bench judgment.

UTTAM Vs SAUBHAG SINGH AND OTHERS the advocates gave concession that the amendment 2005 is not applicable and decided on that basis

So Ganduri Koteshwaramma case binds all till the matter is settled by the apex court by larger bench.

From the above discussion Following questions emerge.

1. Whether by Hindu succession Act 1956 coparcenary is taken away. Whether act is intended to depart from old Hindu law or retaining old Hindu law and modifying to some extent?

Coparcenary is not abolished. Gurupadappa Khandappa case full bench judgements sets the law and it must be final and any deviations to be just neglected and are per incuriam.

2. Whether the courts are interpreting in right way?

The courts not settling the law. They are creating confusion among the legal fraternity and litigants. As per the constitution bench of apex court once case decided it sets ratio and it is binding on its co-equal bench and smaller benches and all high courts. If the later benches of the equal benches neglect the earlier judgments and lay down different law it not only damages the belief in the judiciary but also will lead to unsettling the law and disturbs the consistency. So whenever conflicts are noticed the bench should refer to the larger bench to settle the law.

3. Whether apex court has to take a call or legislation where there is doubtful area?

4.  When the purpose of the law made is being failed by interpretation suitable amendment by way of follow up legislation is required or a judicial mechanism is to be set in place/invented to address the confusion created by contradictory judgments.

5. Whether the rights vested under the state’s amendments Andhra Pradesh Tamil Nadu, Karnataka and Maharashtra who amended the Hindu succession act 1956 and made unmarried daughters coparceners irrespective of their father died or not except prior alienation and partition ?.

As per Ganduri Koteshwramma case, even father died before 2005 daughter is coparcener. Even in Prakash Vs Phulavati case what is stated is that if their father died before 2005, the law prevailing earlier to 2005 is applicable. In that case also earlier to 2005 the state amendments are applicable and under that they are coparceners.

6. Whether the alienations made by father and brothers without family necessity is not binding on the daughters share and to what extent.

Here there are different (as of now I imagine) three situations emerge.

i.   If the father died before 2005 and brothers alienate without family necessity, married daughter’s right to seek their share under notional partition is not effected. But sale deeds are binding on daughter’s coparcenary share as the amendment restricts them from challenging the alienation.

ii.  If the unmarried daughters of southern states and Maharashtra have filed suit for partition and have sought for partition of their coparcenary share and have challenged the alienations made by their father and brothers either before or after 2005. The alienations will be not binding on the right of unmarried daughters and that right is not taken away by the 2005 amendment and not effected by restrictions placed by the amending act.

iii. Married daughters cannot claim share in the property alienated before 2005 amendment.

5. Whether the Hindu daughters have right to sue for their share in ancestral property during life time of their father?.

Yes. Father’s death is not necessary to claim share to the daughters. The daughters are coparceners by birth and if there is partition a share equal to that of son is to be allotted to daughter.

If there is no partition of joint family properties, on fathers death notional partition is to be effected regarding the joint family properties and deceased is allotted a share. Now after amendment since daughters are also coparceners by birth, they are allotted equal share with sons and father. The fathers share is divided among class I heirs under section 8 as done in  Gurupadappa Khandappa case.

Conclusion: Daughters are coparceners by birth in their own way from the date of enforcement of 2005 amendment.

Reasons for the conclusion

1. Section 6 of HS Act (2005) says that daughter by birth become a coparcener in her own right in the same manner as the son;

2. Parliament in order to remove discrimination on the basis of the gender brought amendment to the Hindu succession act in 2005. The object of the act will fail if they are held not coparceners and are deprived of their coparcenary share.

3. Daughter can challenge the alienation made after December 2004. It means that though she is coparcener from date of enforcement of 2005 amendment but her right is restricted only to the available property and not to the sold property or partitioned property, because third party rights are created so their rights will be effected so the provision is included to save them. When daughters are seeking partition they will not be allotted share in alienated properties or partitioned properties.

4. The object of the central act is to give right to married daughters and give them equal rights on par with unmarried rights given in some states including Karnataka. It was also apt to say that here that coparcenary to be retained with daughters without them it is injustice to them. Coparcenary is body of persons who have got birth right in the ancestral property.

5.  Unmarried daughters are made coparceners by three southern states Andhra in 1985, Tamil Nadu in 1989, Karnataka in 1994 and also by Maharashtra. If the interpretation as made in Prakash Vs Phulavati is accepted they will be dislodged. The object of the central act is not to dislodge the rights given to them. But to extend it to married daughters also.

5.  If it is said that daughters have to wait for death of their father then daughters are not coparceners by birth and they are only successors to their father's property. Then there is no coparcenary at all. It is death to the coparcenary and this is not the intention of the parliament.

6.  Coparcenary is a body of male who are sharers by birth. Unmarried daughters are also coparceners by birth after 1985 in Andhra Pradesh, after 1989 in Tamilnadu and after 1994 in Karnataka and in whole India after 2005 all daughters married or unmarried are coparceners.

7.  Coparcener daughter can challenge the alienation made by father or by Karta after 2004 December 26 means they can file suit for partition immediately whether the father dead or alive.

8.  If there is coparcenary it is both son and daughter have equal rights.

9.  If we say that daughter has to wait for death of her father for filing partition suit means it is like reversing the reforms clock back. This is definitely not the intention of the parliament. This interpretation is against the object of the 2005 amendment.

10. If father effects partition amongst his sons, then daughters during his life time cannot challenge means it is binding on her? As she cannot sue during life time of her father?. This interpretation will amount to re-legislating by courts and against the object of the amendment.

Note: This article is for legal fraternity and litigants may not be able to make out intended meaning of the article.

The author can also be reached at nreddysdm@rediff.com