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Since the passing
of the Hindu Succession Act, 1956 (‘the Act’), one issue which was constantly
agitated by the liberals was regarding the right of a daughter or a married
daughter in coparcenary property of a Hindu Undivided Family. Some of the States
which took the lead in liberalisation, passed State amendments to the Act,
whereby an unmarried daughter married after the specified date was given a right
in coparcenary property. Kerala, Karnataka and Maharashtra were some such
States.
However, the
agitation of the liberals still continued. As a result, the Act was amended by
the Hindu Succession (Amendment) Act, 2005 (‘the Amending Act’) which came into
force from 9th September 2005. The Amending Act substituted S. 6 of the Act. The
provision of S. 6 of the Act, so far as it relates to this article, is quoted
below :
"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) to (4) x x x
(5) Nothing
contained in this Section shall apply to a partition, which has been effected
before the 20th day of December, 2004.
Explanation. —
x x x"
Mayne’s ‘Hindu Law
and Usage’ describes the scope of the Amending Act as under :
‘The Hindu
Succession (Amendment) Act, 2005 has substituted S. 6, w.e.f. 9-9-2005. With
effect from this date, the devolution of interest in the coparcenary property
shall be governed by this Section. In a Mitakshara joint Hindu family, 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.’
(See 16th Edition,
2008 at page 1175).
Even after passing
of the Amending Act and substitution of S. 6, a number of questions were raised
in the legal circles as to whether the Amending Act was prospective or
retrospective and whether a daughter born before coming into force of the
Amending Act i.e., 9th September 2005 was entitled to benefit under the
newly incorporated S. 6 of the Act. There were divergent views and conflicting
arguments.
Fortunately, these
issues have now come up before our Courts and we now have the benefit of some
judicial pronouncements on the effect of the new S. 6 of the Act.
In Pravat
Chandra Pattnaik and Others vs. Sarat Chandra Pattnaik and Another, (AIR
2008 Orissa 133), the Orissa High Court had occasion to consider the effect of
the Amending Act and the new S. 6 of the Act. It was a case relating to
partition of Hindu Mitakshara coparcenary property. After decision by the lower
Court, an appeal was preferred to the High Court.
The Court held that
the Amending Act was enacted to remove the discrimination contained in S. 6 of
the Act by giving equal rights and liabilities to the daughters in the Hindu
Mitakshara Coparcenary property as the sons have. The Amending Act came into
force with effect from 9-9-2005 and the statutory provisions create new right.
The provisions are not expressly made retrospective by the Legislature. Thus,
the Act itself is very clear and there is no ambiguity in its provisions. The
law is well settled that where the statute’s meaning is clear and explicit,
words cannot be interpolated. The words used in provisions are not bearing more
than one meaning. The amended Act shall be read with the intention of the
Legislature to come to a reasonable conclusion. Thus, looking into the substance
of the provisions and on conjoint reading, Ss.(1) and (5) of S. 6 of the Act are
clear and one can come to a conclusion that the Act is prospective. It creates
substantive right in favour of the daughter. The daughter got a right of
coparcener from the date when the amended Act came into force i.e.,
9-9-2005.
The Court also did
not accept the contention that only the daughters, who are born after 2005, will
be treated as coparceners. The Court held that if the provision of the Act is
read with the intention of the legislation, the irresistible conclusion is that
S. 6 (as amended) rather gives a right to the daughter as coparcener, from the
year 2005, whenever they may have been born. The daughters are entitled to a
share equal with the son as a coparcener.
The same issue also
arose before the High Court of Karnataka in Sugalabai v. Gundappa A. Maradi
and Others [ILR 2007 KAR 4790; 2008 (2) Kar LJ 406]. The Court was
considering appeals where pending the appeals the Amending Act was passed by the
Parliament. The Court held that as soon as the Amending Act was brought into
force, the daughter of a coparcener becomes, by birth, a coparcener in her own
right in the same manner as the son. Since the change in the law had already
come into effect during the pendency of the appeals, it is the changed law that
will have to be made applicable to the case. The daughter, therefore, by birth
becomes a coparcener and that there is nothing in the Amending Act to indicate
that the same will be applicable in respect of a daughter born on and after the
commencement of the Amending Act.
In coming to the
conclusion, the Court referred to the following principles of interpretation of
statutes as laid down by the Apex Court :
(1) Statutory
provisions which create or take away substantive rights are ordinarily
prospective. They can be retrospective if made so expressly or by necessary
implication and the retrospective operation must be limited only to the extent
to which it has been so made either expressly or by necessary implication.
(2) The intention
of the Legislature has to be gathered from the words used by it, giving them
their plain, normal, grammatical meaning.
(3) If any
provision of a legislation, the purpose of which is to benefit a particular
class of persons is ambiguous so that it is capable of two meanings, the meaning
which preserves the benefits should be adopted.
(4) If the strict
grammatical interpretation gives rise to an absurdity or inconsistency, such
interpretation should be discarded and an interpretation which will give effect
to the purpose will be put on the words, if necessary, even by modification of
the language used.
The Court also
applied the principles stated in American Jurisprudence (2nd Edition, Vol. 73,
Page 434, Part 366) quoted with approval by the Supreme Court in S. R. Bommai
v. Union of India, (AIR 1994 SC 1980).
"While it has been
held that it is the duty of the Courts to interpret a statute as they find it
without reference to whether its provisions are expedient or inexpedient, it has
also been recognised that where a statute is ambiguous and subject to more than
one interpretation, the expediency of one construction or the other is properly
considered. Indeed, where the arguments are nicely balanced, expediency may trip
the scales in favour of a particular construction. It is not the function of a
Court in the interpretation of statutes, to vindicate the wisdom of the law. The
mere fact that the statute leads to unwise results is not sufficient to justify
the Court in rejecting the plain meaning of unambiguous words or in giving to a
statute a meaning of which its language is not susceptible, or in restricting
the scope of a statute. By the same token an omission or failure to prove for
contingencies, which it may seem wise to have provided for specifically, does
not justify any judicial addition to the language of the statute. To the
contrary, it is the duty of the Courts to interpret a statute as they find it
without reference to whether its provisions are wise or unwise, necessary or
unnecessary, appropriate or inappropriate, or well or ill conceived."
One additional
issue was raised before the Court in this case as to whether there was a
conflict between the Amending Act and the provisions of the Hindu Succession
(Karnataka Amendment) Act, 1994. The Court held that "When there is a conflict
between the State law and the subsequent law made by the Parliament on an Entry
in Concurrent List, it is the law made by the Parliament that will prevail over
the State Law even though the State law was passed after obtaining assent of the
President and it is not necessary that law made by the Parliament should
expressly repeal a State law."
It is submitted
that, in view of the aforesaid decisions of the Orissa and the Karnataka High
Courts, the issue is presently settled and that the daughter of a coparcener
becomes, by birth, a coparcener in her own right in the same manner as the son,
irrespective of whether she was born before or after the Amending Act came into
force.
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