FEMALE SUCCESSION AFTER 2005 AMENDMENT AND SUPREME COURT INTERPRETATION
• INTRODUCTION: The HINDU SUCCESSION ACT 1956, is an Act enacted to amend and codify the law relating to intestate or unwilled succession, among Hindus, Sikhs, Buddhists and Jains. The Act lays down a uniform and comprehensive system of inheritance and succession into one Act. Before coming of this act there was Indian Succession Act, 1925, which was to consolidate the law applicable to Intestate and Testamentary successions. This act applies only to matters connected with intestate (When a person dies without making will) and testamentary succession. With the coming of The Hindu Succession Act 1956, limited estate right of the Hindu Women is abolished. Any property possessed by Hindu female is to be held as her absolute property and she is given full power to deal with it and can dispose it off by Will. Parts of this act were amended by Hindu Succession Amendment Act, 2005.
• Meaning of Inheritance: Inheritance is the lawful automatic transfer of state and property of a deceased person towards his family members and dear ones (Heirs), this process is also known as succession. Both of them are often used as interchangeably.
THE HINDU SUCCESSION ACT, 1956 governs the succession and inheritance laws for Hindus along with Buddhists, Janis and Sikhs. This is applicable to both man & women. This Act makes no difference between movable and immovable property. It only applies to Intestate Succession (When there is no will) and to anyone who converts to Hinduism. It has no application in case of testamentary succession.
• When a man dies without a will, it devolves to his heirs according to four categories – Class I, Class II, Agnates (if 2 people are related by blood or adoption wholly through males) and Cognates (who are related to the intestate by blood or adoption but not wholly through males), with first preference to class I heirs. In the absence of any class 1 heirs, the property devolves upon class II heirs. If a man leaves no class I or class II heirs, the property devolves to Agnates and then to cognates. Here is how various women in a man’s life inherit the property if he dies intestate.
• Wives: A wife is entitled to an equal share of her husband’s properties like other surviving, entitled heirs. If there are no other sharers the wife has full right to inherit the entire property of her deceased husband.
According to Section 10 of The Hindu Succession Act 1956 the distribution of property takes places among all heirs, including the deceased’s widow.
SECTION 8:-General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—
• (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
• (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
• (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
• (d) lastly, if there is no agnate then upon the cognate of the deceased.
THE HINDU SUCCESSION ACT, 1956 THE SCHEDULE (See section 8) HEIRS IN CLASS I AND CLASS II
Class I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; 1[son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].
Class II Father. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter. Father’s father; father’s mother. Father’s widow; brother’s widow. Father’s brother; father’s sister. Mother’s father; mother’s mother. Mother’s brother; mother’s sister. Explanation.—In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.
Prior to its substitution, Section 6 read as under:-
"Section 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 Mitakshara coparcenary property.- When a male Hindu dies after the commencement of this Act, having 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:
Provided that, if the deceased had left him surviving 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 the Mitakshara 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 purpose of this 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.
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.”
Prior to the Amendment of 2005
Unamended Section 6 provided that if a male coparcener had left behind on death a female relative specified in Class I of the Schedule or male relative claiming through such female relative, the daughter was entitled to limited share in the coparcenary interest of her father not share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts.
Females cannot claim their share in the ancestral property as they were not the coparceners and were treated as only members of Hindu undivided family. They only had right to claim share in the self acquired property of their father if he dies intestate. In regard to the ancestral property , it shall devolve by survivorship upon the surviving members of the coparcenary i.e the males and not in accordance with this.
Amendment of HSA 1956
To end discrimination against women, changes in The Hindu Succession Act 1956 were made on 9th September 2005 through Hindu Succession Amendment Act 2005, wherein section 6 of the Act was amended.
SECTION 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 same coparcenary property as that of a son
This means that now a daughter has an equal right to Ancestral property as a son and her share in it accrues by birth itself. Before 2005 only sons had a share in such Ancestral property.
• Before 2005, The Hindu Succession Act 1956 considered ‘daughters’ only as members of the Hindu Undivided family (HUF) and not as coparceners .The coparceners are the lineal descendants of a common ancestor, with the first four generations having a birth right to ancestral or self acquired property. However once the daughter was married she was no longer considered as a member of Hindu Undivided family. After the Amendment of 2005, the daughter has been recognized as a coparcener and her marital status makes no consequence to her right.
The daughter will have the same rights as a son to the father’s property, be it ancestral or self acquired irrespective of her date of birth. It does not matter if she was born before or after 9th September 2005. On the other hand, the father should have been alive on 9th September 2005 for the daughters to stake a claim over his property.
• If he has died before 2005 she will have no right over the ancestral property and self acquired property will be distributed as per the father’s will. (2016) 2 SCC 36.Prakash & ORS Vs. Phulavati & ORS.
• In February 2018, the Supreme Court held that a daughter living or dead, on the date of amendment will be entitled to the share in father’s property. This implied that even if the daughter was not alive on the date of amendment, her children could claim partition and can ask for the share of their mother.
WHETHER THE DAUGHTERS WHO ARE BORN BEFORE AMENDMENT OF 2005 CAN ASK FOR THEIR SHARE IN THE ANCESTORAL PROPERTY?
Case: 1st Feb(2018) 3 SCC 343 Dannamma Vs. Amar.
Background: In 2002 a plea was filed in Karnataka by 2 sisters of the Savadi family, seeking a share in their late father Mr. Savadi’s property. The trial court dismissed their plea in 2007 and held that the sisters were not entitled to any share as they were born prior to enactment of THE HINDU SUCCESSION ACT1956 and therefore could not be considered as coparceners. Appeal to Supreme court was made in this context.
According to verdict of Supreme Court:- Setting aside the Hon'ble High Court’s order the Hon’ble Supreme Court held a Daughter’s share in ancestral property could not be denied on the ground that she was born before the amendment of 2005 and the amendment was applicable to all partition suits filed before 2005 and pending, when amendment was framed.
The law was amended to give daughters equal status to that of a son in a succession related matters. These changes have been sought to be made on the touchstone of equality thus seeking to remove the perceived disability and prejudice to which daughter was subjected.
According to the Supreme Court the Amendment of Section 6 of THE HINDU SUCCESSION ACT 1956 vide the HINDU SUCCESSION AMENDMENT 2005 clinches the issue beyond a pale of doubt in favour of daughters and says that:-
For daughters wanting to claim a share in their ancestral property they can now do so, regardless of the year of their birth. Even children of pre-deceased daughter can claim a share in Hindu Undivided Family’s property to the extent it would have devolved upon their mother.
Section 6 of THE HINDU SUCCESSION ACT 1956 applies only to intestate successions (i.e. default succession under the law) and not to bequests of personal assets through testamentary instruments (i.e. a will or codicil).
• A married Hindu daughter also has the right of residence in her father’s house if she is deserted divorce or widow. In case of Self acquired property , father has the right to gift the property or will to anyone he wants and a daughter will not be able to raise an objection.
WHETHER THE AMENDMENT OF 2005 HAS RETROSPECTIVE EFECT OR NOT AND WHETHER IT APPLIES TO THE PENDING CASES OR NOT?
(2016) 2 SCC 36 Prakash and Ors Vs. Phulavati & Ors
The dispute was regarding the ancestral and self acquired property and retrospective application of the Amended act. The respondents had filed a petition in the Supreme Court regarding the filing of the suit in the trial court of Belgaum, claiming for partition and possession of certain percentage of ancestral properties, which were acquired by her (respondent’s father) and different percentage of share in ancestral property. The death of respondent’s father, who had acquired the ancestral property happened on 18th Feb 1988. After his death respondent acquired the ancestral properties.
The present appellants challenged this in year 1992 claiming that respondent can only acquire her father’s self acquired property and not the ancestral property that was inherited by him.
• Decision of Apex Court: The Apex Court drew the distinction between the Section 6 of THE HINDU SUCCESSION ACT 1956 and the Amended Act of 2005 and said that even after the act expressly not mentioning the retrospective application, it would not be appropriate to consider it as Social legislation and apply it retrospectively.
• The exact date of the trial court verdict is not known the case was filed in 1992 and first appeal in High Court was made in 2007 immediately after the verdict.
• When Amendment act came into effect on 9th September 2005, the respondent according to Section 6(1) of the act rightfully claimed her share of the property according to the Amendment Act. The trial court partly allowed the suit.
• In High Court the contention was that the respondent’s father died before the Amendment Act came into existence hence it cannot be applied to respondent’s case.
Can the Amendment Act of 2005 be applied to the partition effectuated without the decree of court?
• Decision in first issue: Regarding the first issue, the Bench analyses the judgment delivered by SC in case of 15th April 2009 SC G. Sekar Vs. Geetha & Ors. Any Amendment or development that will be made in law will be applicable to the cases, which were in pendency during the procedure of amendments in law.
Based on this, the High Court made it clear that as the case was pending during commencement of Act it will be applied to the present case while keeping the difference drawn between such application and the retrospective application intact.
Whereas about 2nd issue: It is completely based on the Amendment Act 2005. Section 6(5) of Act says that this Act would not be applicable to the partitions effectuated before 20th December 2004. Hence the appellants contested saying that as the partition was done before this particular date the act will not be applicable. But the act explicitly says that the word ‘partition’ means a partition effectuated by the registered deed under The Registration Act 1908 or made by the decree or order passed by court. In the present case, the partition was not made based on any sort of legal order or under The Registration act. It was just a normal partition not in accordance with any legal order.
Aggrieved by High Court’s decision the appellants made an appeal to Supreme Court. Hence the contention was made on the basis of date of death of respondent’s father.
The appellants claimed that the death happened and father seized to be a coparcener in the property before the act came into place, meaning he was no more a coparcener in the family when act came into existence. Hence the respondent cannot claim to be daughter of a coparcener as such. Therefore, when she is not even daughter of a coparcener there would be no question of applying the act in her case.
Final decision of the Hon’ble Supreme Court: Respondent in the first place is not considered a coparcener as her father was not living coparcener as on the date of commencement of judgment. Amendment can be applied to the daughters whose father was living coparcener as of 9th September 2005 regardless of when the daughters are born. So the Amendment of 2005 does not have any retrospective effect. The Apex Court drew the distinction between the Section 6 of THE HINDU SUCCESSION ACT 1956 and the Amended Act 2005 and said that as the act is not expressly mentioning the retrospective application, it would not be appropriate to consider it as Social legislation and apply it retrospectively.
There were conflicting judgments regarding the retrospective application:-
1.In 2015 judgment in the (2016) 2 SCC 36 Prakash Vs. Phulvati & Ors case a two judge bench had held that if coparcener (father) had passed away prior to 9th September 2005 (date on which amendment came into effect) his daughter would have no right to coparcenary property. The rights under the amendments are applicable to living daughters of living coparceners as on 09.09.2005, irrespective of when such daughters are born.
2.However in the 1st Feb (2018) 3 SCC 343 Danamma Vs. Amar case:
Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener's father was not alive when the substituted provision of section 6 of THE HINDU SUCCESSION ACT came into force.
In 2018 another two judge bench had held that 2 daughters in this matter would get a share in the property even if their father had passed away in 2001 and also in case if daughter are born prior to 9th Sept 2005. In this case it was held that the share of the father who died in 2001 would also devolve upon his two daughters who would be entitled to share in the property. The daughters, sons and the widow were given 1/5th share a piece.
Unobstructed Heritage: The Hon’ble Supreme Court noted that Section 6 of THE HINDU SUCCESSION ACT gives an unobstructed heritage (i.e. right by birth) to the daughter, noting that a coparcenaries father need not be alive on 9th Sept 2005.
ORAL PARTITION:- Before the Amendment Act in 2005 an oral partition was permissible with the burden of proof on the person who claims there was an verbal division. But amended Section 6 (5) of THE HINDU SUCCESSION ACT 1956 says, a partition can be effected by any registered deed or decree of the court.
SECTION 6(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, 1908 (16 of 1908) or partition effected by a decree of a court.]
The court ruled that, a plea of oral partition cannot be legally accepted. However it may be accepted in exceptional circumstances if it is supported by public documents and partition is finally evinced in same manner as it had been effected by a decree of court, it may be accepted.
The provisions contained in substituted Section 6 of THE HINDU SUCCESSION ACT 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
The rights can be claimed by the daughters born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to disposition or alienation, partition or testamentary disposition which had taken place before 20th December 2004.
Since the right in coparcenary is by birth it is not necessary that father coparcener should be living as on 09.09.2005.
In view of the rigor of provisions of Explanation to Section 6 (5) of The Hindu Succession Act, 1956 a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by deed of partition duly registered under provisions of The Registration Act 1908 or effected by decree of court.
However in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by decree of court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
JUDGEMENT OF SUPREME COURT TO SETTLE THE LAW ON RETROSPECTIVE OPERATION
11th August 2020 Vineeta Sharma Vs. Rakesh Sharma.
The question concerning the interpretation of section 6 of The Hindu Succession Act 1956 by Hindu Succession (Amendment) Act, 2005 (in short, 'the Act of 2005') was referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343.
Different benches of the apex court had differing views on the issue, which saw precedents formed for and against the current position taken up by the apex court. However, the latest verdict overrules the previous precedents that came about in 2015 and 2018
The Supreme Court held that daughters will have equal rights in ancestral property as sons even if their father died before The Hindu Succession Amendment Act 2005 came into force.
In landmark judgment the Hon’ble Supreme court held that daughters will have equal coparcenary rights in Hindu Undivided Family’s properties, irrespective of whether the father was alive or not on 9th September 2005, when an amendment came into force.
The provisions contained in substituted Section 6 of THE HINDU SUCCESSION ACT 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities
• The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
The bench noted that the 2005 Amendement recognised that the right of a daughter to parental or ancestral property was granted at birth.
“The conferral of a right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcenar in the same manner with the same rights as if she had been a son at the time of birth.
• The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class¬I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 of THE HINDU SUCCESSION ACT 1956 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
• In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of The Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
Crucially, the ruling also clarifies that the law can be applied retrospectively. However, it stated that any partition of the property that was only agreed upon verbally, and without written consent will not be treated as binding.
The apex court also directed that “as far as possible,” all pending cases relating to property disputes that involved the rights of daughters to be resolved within six months noting that “daughters cannot be deprived of their right of equality.
BY:- Adv.Shine Gupta