FEMALE AS COPARCENER: ANALYSING THE MARCH

OF LAW

(Assignment towards partial fulfilment of the assessment in the subject of Family Law - II)

SUBMITTED BY:

SUBMITTED TO:

NISHANT PRATYUSH-1217 M R. ASHOK

WADJE,

KUNAL KUMAR-1212 F ACULTY

OF LAW,

IRIKA GAGAN JYOTI- 1007 NLU

JODHPUR

ADITHYAN SREEKUMAR - 1186

SEC.-A | SEM. – VII | B.A., LL.B (HONS.)

NATIONAL LAW UNIVERSITY, JODHPUR
SUMMER SESSION
(JULY-NOVEMBER 2017)

2
 INTRODUCTION

The women play a significant role in the life of every individual human being. Securing her
better birth rights would mean giving better future to our own society, family and to every
individual. The gender inequality facets in different forms, but the most tedious one percept
relate to the effective property rights. This disparity in property right pertaining to gender,
spells from ancient times.

The present paper seeks to give an overview of the development of rights of women under
Hindu Succession laws as a coparcenary. The paper is divided into four chapters. The first
chapter gives a brief overview of coparcenary followed by the development in the position of
a woman as a coparcener under Hindu succession laws. Further the authors have devoted
chapter three for important case laws, which provides a better understanding about the
development of succession rights of women.

3
 TABLE OF CONTENTS

I. INTRODUCTION...................................................................................................................4

II. FEMALE AS COPARCENER.................................................................................................5

A. Position of women before the enactment of The Hindu Succession Act, 1956...........6

1. Classical law...............................................................................................................6

2. The Hindu Women’s Right to Property Act, 1937........................................................7

3. Constitution of India....................................................................................................8

B. The Hindu Succession Act, 1956...................................................................................9

1. Objectives of the Act....................................................................................................9

2. Rights provided to women under the Act...................................................................10

3. Criticism of the Act....................................................................................................11

C. The Hindu Succession (Amendment) Act, 2005.........................................................13

1. Objective of the Act....................................................................................................13

2. Material Changes in the Act......................................................................................14

3. Case laws supporting the 2005 Amendment..............................................................15

4. Criticism of the Act....................................................................................................17

III. IMPORTANT CASE LAWS...............................................................................................18

1. Viral Kumar Natwarlal v. Kapila Ben.......................................................................18

2. Shrimati Bhagirathi v. Manivannan..........................................................................18

3. Sundarambal v. Deviaayangam.................................................................................19

4. Sheila Devi v. Lal Chand...........................................................................................19

5. R Kantha v. Union of India........................................................................................20

IV. CONCLUSION & SUGGESTIONS....................................................................................21

A. Changes brought about in the position of the Women................................................22

B. Suggestions...................................................................................................................22

4
 I. INTRODUCTION

Coparcenary, defined as joint heirship or joint ownership of a property, is the product

of ancient Hindu jurisprudence which later on became an integral part of the Mitakshara
school of Hindu law. The concept of coparcenary in Hindu Law has its origin in the concept
of Daya explained by Vijnaneshwara as a property which becomes the property of another
person by the virtue of relation to the owner.1 The concept of coparcenary under English law
is different from the Hindu legal system in the sense that in English law, coparcenary is the
creation of the act of parties or creation of law whereas in Hindu law, coparcenary cannot be
crated by the acts of the parties though it can be terminated by their acts.2

A Hindu coparcenary is a narrow body of joint family members comprising of

coparceners who acquire an interest in the coparcenary property by birth by the virtue of
being sons, grandsons and great-grandsons of the holder of the property, limited to three
degrees. Every coparcener has certain rights, such as, the right to be in joint possession and
enjoyment of the family property and the right to partition.

Mitakshara and the Dayabhaga, two main schools of Hindu law differ fundamentally
over the concept of coparcenary, in the process deviating from the original concept. One of
the fundamental differences between the two schools lies in the interest in the coparcenary
property where Mitakshara school talks about right by birth due to which there is no defined
share for it fluctuates by birth and death of the coparcener in the joint family and Dayabhaga
talks about a defined interest in the property as it is only after the death of the father that the
sons constitute a coparcenary since there is no right by birth. Since a coparcenary consists
only of the father and his three male lineal descendants, women, whether daughters, mothers
or widows, cannot be a part of the Mitakshara coparcenary.

The present paper seeks to give an overview of the development of rights of women
in succession laws as a coparcenary under Hindu Succession laws. The paper is divided into
four chapters. The first chapter gives a brief overview of coparcenary followed by the
development in the position of a woman as a coparcener under Hindu succession laws.
Further the authors have devoted chapter three for important case laws, which provides a
1
Kulwant Malik, Theory Of Coparcenary Under Hindu Legal System, 2011, available at:
http://www.ssmrae.com/admin /images/cdc75de713d4b39cb48bf46ae4fe5c0e.pdf
2
Vijender Kumar, Coparcenary under Hindu Law: Boundaries Redefined, 2009, available at:
https://www.academia.edu/1891799/Coparcenary_Under_Hindu_Law_Boundaries_Redefine
d
5
better understanding about the development of succession rights of women. Finally the
authors have concluded the paper with certain suggestions in the final chapter.

II. FEMALE AS COPARCENER

“Women constitute half of the world’s population, perform nearly two-thirds of its
hours, receive one-tenth of the world’s income and less than one hundredth of the property.”3

Since times immemorial, backed by historical writings, laws have been framed
keeping in mind the interests of the male sex with female sex financially dependent on their
husbands, brothers and other male relatives. Well-educated young women, able to maintain
themselves in a patriarchal society as an independent working woman are married off to
doctors, engineers and other men in service, thus curtailing her self-dependence and making
her submissive to her husband, leaving her at his mercy. 4 While, on the one hand, developed
countries around the world ensured the woman’s right to hold and inherit property, putting
her on an equal social and economic footing with men, on the other hand, a bare reading of
the law in India governing the succession of property amongst the members of Hindu joint
family place women who faces the tremendous responsibility of the upbringing of next
generation while shuttling from home to work at the receiving end.

Prior to the Hindu Succession Act 1956, there was no uniformity in the laws
governing the succession of property with shastrik and customary laws varying from region
to region on the basis of caste. The presence of a large number of succession laws in India
due to different schools such as Dayabhaga in West Bengal and Assam, Nambudri in Kerala,
Mayukha in Bombay, Konkan and Gujarat and Mitakshara in other parts of India and the
diversity in their nature made the property laws even more complex, bringing in non-
uniformity.

A. POSITION OF WOMEN BEFORE THE ENACTMENT OF THE HINDU SUCCESSION

ACT, 1956

3
Philip N. Cohen, Stop that Feminist Viral Statistic Meme, 2011, available at:
http://www.huffingtonpost.com/philip-n- cohen/ stop-that-feminist-viral-_b_835743.html
4
Asha Nayar-Basu, Of Fathers And Sons, 2005, available at:
http://www.telegraphindia.com/1051011/asp/opinion/story_5331519.asp
6
 1. Classical law

The concept of coparcenary came into existence in ancient times when the concept of
a property owned by individual was unknown and was only owned by either a patriarch or by
the family. This concept of family ownership of property was divided into two schools,
namely Mitakshara and Dayabhaga due to the difference of opinions between the two leading
commentators, Vijnaneshwara (Mitakshara) and Jimutawahan (Dayabhaga).5 Mitakshara and
Dayabhaga schools of Hindu law differ fundamentally over joint family as Mitakshara
believed in corporate ownership of property, exhibiting socialistic approach while Dayabhaga
believed in personal ownership exhibiting individualistic approach.6

a. Mitakshara School

Under the customary Hindu law and the concept of ‘Mitakshara coparcenary’
property, a Hindu undivided family consists of a common ancestor and all his lineal male
descendants, together with wives or widows and unmarried daughters in the family, with such
family represented by Karta or manager of the family.7

The exclusion of women from an interest by birth in the coparcenary property and
limiting male ownership to four degrees was due to the custom prevailing in ancient times. 8
The religious belief that a father goes to heaven by the birth of the son suggested that the son
has right to the property of the father even during his life time for saving him from hell which
subordinated the position of the women in the society, making her an unwanted element.
Daughter was not given a share in the coparcenary property as she did not possess the
religious qualifications of the son and she was a temporary member in the family of her birth
under Hindu law for she ceased to be a member in the family of her birth on her marriage.
The Supreme Court in Kamesh Panjiyar v. State of Bihar held that a bride leaves the parental
home for the matrimonial home, leaving behind not only memories but also her surname,
gotra and maidenhood.9

5
Dr. Sivaramayya, Law: Of Daughters, Sons and Widows: Discrimination in Inheritance
Laws, 2011, available at: http://www.indiatogether.org/manushi/issue100/sivarama.htm.
6
Ibid.
7
Roopa Gargava, Position of karta and the effect of amendment of section 6 of HSA, 1956 in
2005, 2007, available at: http://www.legalserviceindia.com/articles/karta_hsa.htm.
8
Selva Kumar S, Women's right to property, 2016, available at:
http://www.deccanherald.com/content/12717/dhinternet@deccanherald.co.in
9
Kamesh Panjiyar v. State of Bihar, 2005 (2) SCC 388.
7
 b. Dayabhaga School

The Dayabhaga school following the rule of succession neither recognized a right by
birth nor by survivorship in the joint family property for sons and daughters though daughters
get an equal share along with their brothers and could also become the karta of the joint
family property.10 Dayabhaga school, a more reformed school of Hindu Law, recognized a
widow, daughter, mother, father’s mother and father’s father’s mother as heirs.11

Unlike Mitakshara school, sons have no right by birth under the Dayabhaga school as
there is no coparcenary between father and son with the son having no right of survivorship.
Under Mitakshara school of Hindu law, a woman though having right to sustenance, the
control and ownership of the family property was not vested in her. Females were included as
heirs only to the property separately owned by an individual for inheritance by succession.

2. The Hindu Women’s Right to Property Act, 1937

The first legislation which brought about a major change in the concept of
Coparcenary was the Hindu Women’s Right to Property Act, 1937. Before this law was
passed, if a male coparcener died leaving behind a widow, the doctrine of survivorship would
apply and his share in the joint family property would devolve upon the surviving male
coparceners. His widow was only entitled to maintenance and residence from the joint family
property.12 Hindu Women’s Right to Property Act hindered the application of the survivorship
law. According to Section 3(2) of this Act, if a male coparcener is survived by his wife, then
his share in the coparcenary property would not devolve upon the surviving coparceners but
would be inherited by her. As a result she was admitted into the coparcenary. 13 However as
laid down in CIT v. Sandhya Rani Dutta,14 females alone could not start a coparcenary.

Under this section the widow even had a right to demand partition of the coparcenary
property and claim the share that her husband would have got. 15 However, Section 3(3) did

10
Law Commission of India, Property Rights of Women: Proposed Reforms under the Hindu
Law, 2014, available at: http://www.lawcommissionofindia.nic.in/kerala.htm#chapter2
11
Guru Gobind v. Ananda Lal, (1870) 5 Beng LR 15.
12
Dr. Poonam Pradhan Saxena, Family Law Lectures Family Law II (3rd, Lexis Nexis
Butterworth, Nagpur 2011) 257.
13
Ramesh Chandra Nagpal, Modern Hindu Law (2nd, Eastern Book Company, Faridabad
2008) 788.
14
CIT v. Sandhya Rani Dutta, (2001)3SCC420.
15
Dr. Poonam Pradhan Saxena (n 1) 258
8
not entitle her to absolute ownership but only to limited ownership. After the partition, she
could enjoy the property during her lifetime, could appropriate the income arising out of the
property, but could not will it off or alienate it by means of gift, mortgage, lease or sale. 16She
could alienate her share in the property only in two circumstances:

1) In case of legal necessity

2) For the performance of “indispensable religious duties.”17

Her interest in the property would terminate on her death or remarriage and the
property would devolve upon the heirs of her deceased husband.18

It must be noted that the joint family as such was not affected by this particular
legislation. As laid down in Kallian Rai v. Kashinath19 that even though after the death of a
male coparcener, his widow stepped into his shoes, the status of the joint family was not
affected at all. The joint family continued in the same way and the Karta continued to be the
representative of the family. All the fundamental features of a coparcenary remained intact.20

3. Constitution of India

The founding fathers of the Indian constitution taking heed of this discriminatory and
subordinated position of women in the society took positive steps to provide her with equal
status as the man under Article 14, Article 15(2) and (3) and Article 16 of the Indian
Constitution as a part of Fundamental Rights guaranteed by the Constitution. Under Part IV
of the constitution containing the directive principles, Article 39(d) provides for the state to
ensure equality between man and woman by implementing the policy of equal pay for equal
work for both men and women.21

Notwithstanding the fundamental rights and directives given by the Indian

constitution, a woman continued to be neglected and discriminated in the family of her birth
as well as her matrimonial family due to unjustified violation of such provisions by some of
the prejudiced personal laws.

B. THE HINDU SUCCESSION ACT, 1956

16
Dr. Paras Diwan, Family Law (9th, Allahabad Law Agency, Faridabad 2009) 410
17
Dr. Poonam Pradhan Saxena (n 1) 258
18
Ibid.
19
Kallian Rai v. Kashinath, (1943) ILR All 307
20
Ibid.
21
Article 39, The Constitution Of India, 1949
9
 The Hindu Succession Act was enacted in 1956. It laid down a comprehensive and a
uniform code of succession for all Hindus. 22 It repealed the Hindu Women’s Right to Property
Act, 1937. But instead of reducing the rights of the woman, the Act has given more rights to
them.23

1. Objectives of the Act

The long title of the Act states that it is an act to amend and codify the law relating to
intestate succession among Hindus.24 The Act laid down a uniform and comprehensive law of
succession with an attempt to ensure equality of inheritance rights between sons and
daughters, applying to Hindus, Buddhists, Jains and Sikhs. The Act reformed the Hindu law
by giving absolute ownership rights to women and granting daughters an interest in the
property of their father to provide for equality between men and women.

The main objective of this Act was:

1) To empower both Hindu males and females to make a will of their property
2) To clarify that a Hindu male in a Mitakshara coparcenary had the right to
dispose of his interest in the coparcenary property. This right was not subject
to any provision of the Act or any other law for that matter.25

This Act, thus, gave absolute ownership rights to Hindu females. However, this Act
could not do away with the concept of notional partition. Even though the daughter
(including a married daughter) was made a primary heir to her father’s property, she got a
lesser share than her brother in the property due to the existence of both separate property and
joint family property. The son had an interest by birth in the ancestral property but this
interest was denied to the daughter.26

2. Rights provided to women under the Act

a. Absolute ownership of Hindu Women under Section 14 of the Hindu

Succession Act, 1956

22
Dr. Poonam Pradhan Saxena (n 1) 258
23
Ramesh Chandra Nagpal (n 2) 799
24
The Hindu Succession Act 1956.
25
Dr. Poonam Pradhan Saxena (n 1) 259
26
Ibid.
10
 The Hindu Succession Act 1956, under Section 14(1), conferred upon Hindu women
full and absolute ownership of property for the first time where the word ‘property’ includes
both movable and immovable property.27 The Supreme Court in Punithavalli v. Ramanlingam
held that the right conferred upon women under Section 14(1) is a departure from Hindu law,
text and rules and an estate taken by a female Hindu is an absolute ownership.28

The object of Section 14 is to give absolute ownership rights to female and convert
any estate already hold by a woman as a limited owner on the date of the commencement of
the Act to an absolute owner.29 In Gulwant Kaur v. Mohinder Singh the SC talking about the
objective of Section 14 of HSA held that it removes restrictions on the ownership of the
property possessed by a female Hindu as long as her possession is traceable to lawful origin.30

The provision in Sec. 14(1) of the Act is protected by the express constitutional
mandate under Article 15(3) of the Constitution of India which provides that nothing shall
prevent the state from making any special provision for the benefit of women and children.31

b. Rule of Survivorship under Section 6 of the Hindu Succession Act, 1956

Section 632 of this Act lays down the law relating to notional partition. It did away
with the doctrine of survivorship completely. If an undivided member of the joint family died,
leaving behind a class 133female heir or a son of a predeceased daughter, it’ll be assumed that
27
§14(1), The Hindu Succession Act 1956.
28
Punithavalli v. Ramanlingam AIR 1970 SC 1730
29
Bai Vijaya v. T. Chelabhai AIR 1979 SC 993.
30
Gulwant Kaur v. Mohinder Singh AIR 1987 SC 2251.
31
Pratap Singh v. Union of India AIR 1985 SC 1695.
32
§ 6, the Hindu Succession Act, 1956, Devolution of interest of 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.
33
Class I heirs- 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 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.
11
he had asked for partition before his death (irrespective of whether he had actually or not or
whether he was competent to ask for a partition or not). Devolution of his share in the
property would depend on the laws relating to intestate or testamentary succession as
provided by this Act and not on the law of survivorship.34

The main intention of the law-makers was that widows and daughters who initially
had no right in the ancestral property would now succeed as primary heirs. However, this Act
led to an unequal distribution of property between the son and the daughter.35

Two options were available with the legislatures to remove this discrimination.

1) To do away with the concept of joint family property completely.

2) To give the daughter a right by birth in the coparcenary property.36

Andhra Pradesh was the first state to introduce unmarried daughters into the
coparcenary property followed by Tamil Nadu, Maharashtra and Karnataka.37

3. Criticism of the Act

The Act is an uneasy compromise between the conservatives who wanted to retain the
Mitakshara coparcenery and the discrimination against daughters and the progressives who
wanted to abolish the Mitakshara coparcenery altogether for the upliftment of women. 38 The
Nehru government chose to retain the Mitakshara coparcenary and system of joint family in
spite of recommendations to the contrary by BN Rau committee.

The notion that the daughters were equal to sons under the Hindu law was prevalent
due to Section 10 of the HSA dealing with matters of succession of property of a male Hindu
dying intestate which declared that property is to be distributed equally among the Class I
heirs defined by the Schedule, of which daughters, mothers and widows were a part of.
Though such a step seemed in favour of bringing about gender equality, the truth was a far
cry due to the mischief which was present in the concept of Mitakshara coparcenary
property.39

34
Dr. Poonam Pradhan Saxena (n 1) 260
35
Mitra, Hindu Law (2nd, Orient Publishing Company, New Delhi 2006) 442
36
Ibid.
37
Mitra (n 17) 444
38
Joel A. Nichols (ed.), MARRIAGE AND DIVORCE IN A MULTICULTURAL
CONTEXT, 1st ed. 2012, p. 232.
12
 Exclusion of women as coparceners in the joint family property under the Mitakshara
school of Hindu law under Section 6 of the Act was, therefore, violative of equal rights for
women guaranteed by the Constitution in the context of property rights with females unable
to inherit ancestral property.40 Also, as per the proviso to Section 6, the interest of the
deceased male in the Mitakshara coparcenary devolve firstly upon the four primary heirs,
namely son, daughter, widow and mother specified in Class I of the Schedule by intestate
succession.41 The principle of representation goes up to two degrees in the male line of
descent though it goes only up to one degree in the female line of descent for the remaining
eight members in the Schedule.42

Under Section 23 of the Act, the daughter’s right to reside in the house of her natal
family was restricted till the time of her marriage unless widowed, deserted or separated from
her husband and could not ask for partition of the dwelling house occupied by members of
joint family until the male heirs chose to partition.43 Another controversy was the
testamentary power of the man which could be exercised in a patriarchal household to
disinherit a daughter of her share in the self-acquired property of such male.44

Another source of gender inequality in the Act was Sec 4(2) which was silent on the
provisions of tenurial laws concerning the devolution of tenancy rights in agricultural
holdings due to which interests in tenancy land devolved according to state-level tenurial
laws, highly gender-biased in states such as Haryana, Punjab and Uttar Pradesh giving
preference to lineal male descendants and limited ownership for women.45 Other
discriminatory provisions in the Act were Section 15 which talked about succession of
39
Mayank Samuel, Daughter as a Coparcener: Step towards Gender Equality, 2013, available
at:
https://www.academia.edu/15001610/Daughter_as_a_Coparcener_Step_towards_Gender_Eq
uality
40
Report of the Standing Committee of Parliament on Law and Justice, available at:
http://www.hrln.org/admin/issue/subpdf/Report_of_the_Parliamentary_Standing_Committee
_05May.pdf
41
Joel A. Nichols (ed.), MARRIAGE AND DIVORCE IN A MULTICULTURAL
CONTEXT, 1st ed. 2012, p. 232.
42
Philip N. Cohen, Stop that Feminist Viral Statistic Meme, 2011, available at:
http://www.huffingtonpost.com/philip-n- cohen/ stop-that-feminist-viral-_b_835743.html
43
Sec. 23, The Hindu Succession Act, 1956
44
Asha Nayar-Basu, Of Fathers And Sons, 2005, available at:
http://www.telegraphindia.com/1051011/asp/opinion/story_5331519.asp.
45
§ 4(2), The Hindu Succession Act 1956.
13
property of a female Hindu dying intestate, specifying that in the absence of sons and
daughters of the deceased, such property would go to the heirs of the husband of the deceased
and only in their absence that the property would devolve upon the mother and father of the
deceased46 and Section 24 which barred certain widows, such as those of predeceased sons,
from claiming a share in the deceased’s property if such widow had remarried.47

C. THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

The 174th report of the 15th Law Commission in 2000 suggested amendments in the
Hindu Succession Act 1956 to set right the discrimination against women and empowering
the daughter of a Mitakshara coparcener, thus forming the basis of the present amended Act. 48
The amended Act came into effect on 9th September, 2005.

1. Objective of the Act

The Act lays down a uniform and comprehensive system of inheritance and applies,
inter alia, to persons governed by the Mitakshara and Dayabhaga schools of law removing
discrimination as contained in Section 6 of the Hindu Succession Act 1956. 49 The amended
Act gave women equal rights in the inheritance of ancestral property by making her a
coparcener in the family property.

2. Material Changes in the Act

This amending Act brought about several changes to the classical law and to the Act of 1956.

1) It changes the concept of coparcenary completely by introducing daughters into the

coparcenary
2) The Act states that the daughter will be a coparcener irrespective of her marital status.
Her marriage will have no bearing on her status as a coparcener and she will continue
to be a coparcener as well as a member of her father’s joint family. As a result, she
will be a member of two joint families- her father’s family and her husband’s family.
The traditional Hindu law concept of her being a member of her father’s joint family
only till before her marriage is completely done away it.
3) The Act also states that the daughter will be a coparcener in the same manner as the
son. She shall have right in her father’s property by birth.
46
§ 15, The Hindu Succession Act 1956.
47
§ 24, The Hindu Succession Act 1956.
48
Available at: http://www.lawteacher.net/finance-law/essays/daughters-get-equal-share.php.
49
§ 6, The Hindu Succession (Amendment) Act 2005.
14
 4) The Act has modified the position of the daughter’s children as well. If the daughter
gets married after the amendment has been passed, then her children will be members
of their father’s joint family by birth as well as their mother’s natal family. As a result
her children will also be coparceners and members of her father’s join family. At the
same time they are also coparceners and members of their father’s joint family leading
to their dual membership.
5) If the daughter is the senior most member of the joint family, she can be a Karta as
well. Since her coparcenary rights don’t get affected by her marriage, she can
continue to be the Karta even after her marriage.
6) The amended Act entitles a female Karta to represent the family as well as to become
the head of the family.
7) The Act abolishes the dwelling house rule which did not allow Class-1 female heirs to
partition their share and restricted a married daughter to live in it.
8) The doctrine of survivorship is no longer applicable. This Act provides for intestate or
testamentary succession.
9) This Act allows female coparceners to will off her undivided share in the Mitakshara
coparcenary property.
10) The son, no longer has an obligation to pay off his father’s debts
11) Section 2450 of the Hindu Succession Act is removed by this amendment.

The law also states that if a partition had been affected or if alienation had taken place
post 20th December 2004, then the partition or the alienation would stand void. However, any
transfer or alienation prior to this date would remain unaffected by this amending Act.

3. Case laws supporting the 2005 Amendment

Various issues such as the retrospective nature of the amended Act and whether a
daughter born before 9th September 2005 was entitled to benefit under the Sec. 6 of the
amended Act came up before the courts.

a. Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik51

The Orissa HC, in the case, Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik, held
that the amended Act was enacted to remove the discrimination contained in Sec. 6 of the

50
§ 24, Certain widows re-marrying may not inherit as widows. —Any heir who is related to
an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the
widow of a brother shall not be entitled to succeed to the property of the intestate as such
widow, if on the date the succession opens, she has re-married.
51
Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik AIR 2008 Orissa 133.
15
Hindu Succession Act 1956 conferring daughters with equal rights and liabilities in the
Mitakshara coparcenary property as the son.52 The court said that the Act itself is very clear
creating a substantive right in favor of the daughters without any ambiguity in the provisions
and therefore, the amended Act should be read keeping the intention of the legislature in mind
to come to a reasonable conclusion.53 The court also rejected the contention that only
daughters born after 2005, would be treated as coparceners on the ground that the provision
of the Act when read along with the intention of the legislature, makes it very clear that the
amended Act makes a daughter coparcener in the joint family property from the year 2005
irrespective of when such daughters were born.54

b. Sugalabai v. Gundappa A. Maradi55

A similar issue came up before the Karnataka HC in the case Sugalabai v. Gundappa
A. Maradi where the court held that as soon as the Amending Act came into force, the
daughter of a coparcener becomes, by birth, a coparcener in her own right in the same manner
as the son.56 The court further said that since the change in the law came into effect during the
pendency of the appeal, it is the amended law that would be made applicable in this case. 57
Addressing another issue in this case, the court held that in case of a conflict between the
State law, here, Hindu Succession (Karnataka Amendment) Act 1994 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. 58 Therefore, in view of the decisions of the Orissa and
Karnataka HC, it is a settled fact that that 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.

c. Pushpalatha N.V. v. Padma V.59

The Karnataka High Court, in the landmark case, Pushpalatha N.V. v. Padma V. held
that a historical blunder of depriving the daughter of an equal right in spite of the

52
Ibid.
53
Ibid.
54
Ibid.
55
Sugalabai v. Gundappa A. Maradi ILR 2007 KAR 4790.
56
Ibid.
57
Ibid.
58
Ibid.
59
Pushpalatha N.V. v. Padma V AIR 2010 Karnataka 124.
16
constitutional mandate has now been remedied and the lawful right to which she was entitled
by virtue of the constitution is restored to her from the date of her birth but a daughter born
before 17th June 1956 has no such right as the intention of the Parliament wasn’t to give her
rights in a coparcenary property prior to 1956 when the original Act came into force.60

The explanation given by the court in this case is contradictory to the explanation
advanced by the court in its previous decision in Sugalabai v. Gundappa A. Maradi wherein
the court held that there was nothing in the Act which showed that only those born on and
after the commencement of the act would become coparceners. 61 The amended section,
nowhere, talks about the view which has been taken by the Hon’ble Court that the right to
property is conferred from the date of birth with the provision clearly stating that on and from
the commencement of the Amendment Act, the daughter of a coparcener shall have the same
rights in the coparcenary property as that of a son. A daughter need not be born before or after
a certain date under the amended Act to be granted a share in the coparcenary property of the
Hindu Undivided Family.

4. Criticism of the Act

Though the 2005 amendment gave equal rights to daughters in the coparcenary, the
important question of whether women or daughters can be allowed to become managers of
the joint family property remained unanswered. Another question to be considered is that as
managers of the property of her natal family, she could be vulnerable to the influence
exercised by her husband or her husband’s family. One of the main criticisms of the amended
Act is that it chose to retain the Mitakshara joint property system when there was an urgent
need to follow the footsteps of Kerala and abolish the joint family system. Though the
amended Act makes a daughter coparcener in the joint property, it decreases the share of
other Class I female heirs such as deceased’s widow and mother since the share of the
deceased after notional partition from whom they stand to inherit will decline. Such a thing
can end up playing women against each other with inequality over property rights coming in
among the female heirs and achieving justice for one category of women at the expense of
another.62

60
Ibid.
61
Sugalabai v. Gundappa A. Maradi ILR 2007 KAR 4790.
62
Available at: http://www.lawteacher.net/equity-law/essays/the-law-of-inheritance-in-bengal-
equity-law-essay.php.
17
 Another criticism of the amended act is that the move to make daughters a coparcener in
the joint family property would stand to benefit only those women who are born into families
having ancestral property with this law not applying to the self-acquired property of a person.
Notwithstanding the fact that joint family system has been on a steady decline with
fragmented households, it is unclear whom the law will benefit as today, most of the property
is self-acquired governed by various laws of succession with no rights in self-acquired
property by birth whatsoever. The amended act, therefore, doesn’t have much to offer to
Hindu women in the sense that a Hindu father can still disinherit his daughter and wife by
means of a will or gift from his self-acquired property.63

The main issue is the concept of birth right in Hindu law which being a conservative
institution, belonging to the era of feudalism, sits at the root of the problems of inheritance
rights.64 The amendment instead of abolishing this concept reinforces it by making daughters
a coparcener in the joint family property. It is important to understand that if the state intends
to bring in equality not only between male and female heirs but among the various female
heirs who stand to inherit the property of the deceased, this vicious concept of birth right has
to be done way with. Also, different rules in case of succession of self-acquired property of a
person have to be made such as restricting the right to testation under Sec. 30 of the HSA on
the lines of Continental and Muslim laws to ensure that daughters are not disinherited from
the self-acquired property of their fathers.65

III. IMPORTANT CASE LAWS

The researcher will now give case laws to show that even though on paper the position of
women has improved but in reality property rights are still denied to her.

63
Mayank Samuel, Daughter as a Coparcener: Step towards Gender Equality, 2013,
available at:
https://www.academia.edu/15001610/Daughter_as_a_Coparcener_Step_towards_Gender_Eq
uality
64
Reena Patel, HINDU WOMEN’S PROPERTY RIGHTS IN RURAL INDIA: LAW,
LABOUR AND CULTURE IN ACTION, 1st ed. 2007, p. 53.
65
Mayank Samuel, Daughter as a Coparcener: Step towards Gender Equality, 2013,
available at:
https://www.academia.edu/15001610/Daughter_as_a_Coparcener_Step_towards_Gender_Eq
uality
18
 1. Viral Kumar Natwarlal v. Kapila Ben66

In this particular case, there was an ancestral property belong to a particular Hindu
joint family. Both the sons and the daughters had a share in the ancestral property. There was
a sale against the interest of the daughters without obtaining their consent. The sale took
place before 20th December 2004. After the amending Act was passed, the daughters went to
the Court to seek relief. They wanted the Court to pass an order to declare the alienation void.
The High Court of Gujarat held that since the sale had taken place prior to 24th December,
2004, it was valid. As a result no relief was granted to the daughters.

Since in this case, the transfer had taken place prior to 24 th December, 2004, we can
say that the Court was correct in passing this order. But subsequent case laws will establish
that the judiciary has been very reluctant to give property rights to women.

2. Shrimati Bhagirathi v. Manivannan67

A Hindu joint family consisted of a father, his sons, daughters and grandsons. The
father, sons and the grandsons formed a part of the joint family coparcenary. The father died
in 1975. Post 2005, after the amending Act was passed, the daughters went to the Court to
seek a share in the coparcenary.

The High Court made a distinction between daughters and sisters. The amending Act
came into effect in 2005. In 2005, her status vis-a-vis her brother was that of a sister and not
of a daughter. The Act only allowed daughters and not sisters to form part of the coparcenary.
As a result they lost their coparcenary rights when their father died in 1975. The Court passed
an order against them. Had their father died post 20 th December, 2004, they would have been
entitled to join the coparcenary.68

3. Sundarambal v. Deviaayangam69

Tamal Nadu had come up with Tamil Nadu Hindu Succession (Amendment) Act in
1989 itself. This Act allowed daughters to become a part of the coparcenary from 25 th March
1989. In this particular case, the section in question was Section 29 (A) of the 1989 Act. This

66
Viral Kumar Natwarlal v. Kapila Ben, AIR 2003 Madras 455.
67
Shrimati Bhagirathi v. Manivannan, AIR 2008 Madras 250.
68
Ibid.
69
Sundarambal v. Deviaayangam, (1991) 2 MLJ 199.
19
section allowed daughters to become coparceners by birth thus enabling all daughters born
prior to 1989 to become coparceners.

In this particular case the father died before 1989 leaving behind a daughter. She went
to the Court seeking for an order to enable her to join the coparcenary. Even in this case the
Court held that:

“This section makes daughters a coparcener and not sister. Thus if a male Hindu died
before 25th March, 1989 leaving behind coparcenary property, then his daughter
cannot claim to be coparceners in the same way as the sons, as on the day the Act
comes into effect, her father was not alive. She has a status of a sister vis-a-vis her
brothers and not that of a daughter on the day the act came into force.”70

4. Sheila Devi v. Lal Chand71

A Hindu joint family consisted of a father, his sons and daughters. The father died in
1968 leaving behind a coparcenary property. Post 2005, the plaintiff sisters went to the Court
to seek an order enabling them to join the coparcenary.

The Supreme Court held that:

“The Act indisputably would prevail over the old Hindu law. We may notice
that the Parliament had a view to confer rights upon the female heirs to the
joint family property. In this case, succession opened in 1968. The amendment
Act 2005 would have no application. It is clear that a daughter would get the
benefit of the Act only if her father was alive. To her brothers she is not a
daughter but a sister and sisters cannot join coparcenary.”72

Thus, a daughter will become a coparcener, only if, on the date of the coming of the
law, her father is alive. In this case too, the judgement was passed against the daughter.

5. R Kantha v. Union of India73

The 2005 Act grants an absolute right to the daughters to demand partition of the
coparcenary property. This right is not subject to any impediment. Even if she marries a man

70
Ibid.
71
Sheila Devi v. Lal Chand, (2007) 1 MLJ 797.
72
Ibid.
73
R Kantha v. Union of India, AIR 2010 Karn 27.
20
of some other religion and converts after her marriage, her right to seek partition of the
coparcenary property will not be affected. This is because converts enjoy statutory protection
under the Caste Disabilities Removal Act, 1950.74

However, in this case the Karnataka High Court held that a daughter could not
demand partition of the coparcenary property during the lifetime of her father. She could only
claim her share in the property after her father’s death. The daughter was definitely entitled to
a share in the property but she would get it only when the property opened for succession.
The Court interpreted the word “devolve” in such a way that it would operate only when
succession opened and since succession cannot open during the life-time of her father, it was
only on his death that succession would open and she would be entitled to get her share in the
coparcenary property.75

This judgement is definitely erroneous. The coparceners have a right to seek partition
during the lifetime of the father. The coparceners have a coparcenary right in the property
from birth and the death of the father or for that matter any other coparcener is not required
for him to exercise his right to demand partition. Every coparcener has a right to seek
partition from the father or the Karta as the case maybe. Hence, the assumption that a
daughter has to wait for her father’s death to seek partition is clearly erroneous and is
definitely not in resonance with the spirit of the amending Act.76

IV. CONCLUSION & SUGGESTIONS

After reading the statutes and various case laws, one can conclude that the laws were
never followed in spirit. The intention of the legislature was to do away with the disparity
between males and females. By introducing daughters as coparceners, the legislature wanted
to put females on an equal footing with men. One can be almost sure that by daughters they
meant sisters as well. But our judiciary decided to interpret the term daughter in a very strict
and restricted sense. As a result many females were denied property rights because their
father died before the Act came into effect. Hence, the very object of these laws and
amendments stood defeated. Thus it can be said that even though the females were given

74
Dr. Poonam Pradhan Saxena (n 1) 270.
75
Ibid.
76
Ibid.
21
property rights on paper, these very same rights were denied to them for all practical
purposes.

Several legal reforms have taken place since India’s independence, providing
inheritance rights to women with absolute ownership over the property and equal share in the
coparcenary property to provide her an equal status, on par with men in the society though
that equal status remains illusive.

The Hindu Succession Act 1956 though a path-breaking act, deprived women of
certain rights she earlier was guaranteed under certain schools of Hindu law. Some of the
provisions of this Act have been identified as discriminatory towards women furthering the
interests of male child. The essence of this discrimination and inequality lies in the retention
of Mitakshara coparcenary and a claim in the ancestral property by birth. The Government by
rejecting the recommendations of Rau committee of abolition of Mitakshara coparcenary
tried to appease the orthodox Hindus angered by the government’s attempt to provide
property rights to the women and, therefore, the Act can only be considered as a half-hearted
measure to improve the situation of the women in the country

The 2005 amendment, though, a right step towards empowerment of women, not only
improving her livelihood options and reducing the risk of spousal violence but also
improving her status in her parental family, the fact that such law is applicable only to women
not married on September 9, 2005 is unjust for a woman married before 2005 who would not
get any benefit under the amended Act.

A. CHANGES BROUGHT ABOUT IN THE POSITION OF THE WOMEN

The desire for a son in a joint family is due to the offering of ‘shradha’ by the sons for
the spiritual solace of the ancestors, which for centuries has been considered a sacred as it
saves the father from hell. In this context, one of the significant changes brought about by the
2005 amendment is making women coparceners in the Mitakshara joint family property
ensuring equal property rights for both men and women. Giving a daughter rights by birth in
the joint family property makes her an equally important member of her parental family as
the son undermining the notion that the daughter belongs only to her husband’s family after
the marriage. The objective of the amended Act is the empowerment of daughters of the
Mitakshara coparcenary removing the discrimination prevalent in her parental family as well
as her marital family.

22
 B. SUGGESTIONS

The first and foremost thing to be done in the present scenario is to mobilize the
society and educate people to change their attitude towards the concept of gender equality for
if the concept of equality exists outside the awareness and approval of majority of the people,
it cannot be realized by a section of women socialized in traditions of inequality. It is only
when the people change their attitude towards women, especially the daughters, putting her
on an equal footing as the son that the daunting task of implementation of the Amended Act
would be a success. The need of the hour is also to impose restrictions on the rights of
testation of a person under Sec. 30 of the Hindu Succession (Amendment) Act 2005 so that it
protect the rights of succession of female heirs of all schools of Hindu law. The society
should be made legally and socially aware of the advantages to the whole family if women
own property. Also, legal and social aid should be made available to the women who seek to
assert their rights.

23