My article on ‘Daughter’s right in coparcenary’ (BCAJ-January 2009, Page 509) has evinced considerable interest amongst the practising chartered accountants. I have been flooded with number of inquiries and questions. Some of the inquiries have raised interesting supplemental questions, which justify an additional article on broader aspects on the same subject.
As is well known, the Hindu Succession Act, 1956 (‘the Act’) was amended by the Hindu Succession (Amendment) Act, 2005 (‘the Amendment Act’) with effect from 9th September, 2005. S. 6 of the Act, which was substituted by the Amendment Act to the extent it is relevant to this Article reads as under :
“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 (5) x x x
Explanation. — x x x”
S. 6 of the Act (as amended by the Amendment Act) inter alia provides that on and from the commencement of the Amendment Act, in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener by birth becomes a coparcener in her own right in the same manner as the son. The Section further provides that any property to which a female Hindu becomes entitled by virtue of the provision shall be held by her with the incidents of coparcenary ownership and shall be regarded as property capable of being disposed of by her by testamentary disposition.
One interesting issue which arises for consideration is as to what happens in case of a daughter of a deceased coparcener of an HUF. The brief facts on which such question can arise could be :
(a) there is an existing HUF consisting of father A (Karta) and his two sons B and C. Therefore, the HUF would consist of three coparceners, namely, A, B and C.
(b) A dies before September, 2005 leaving his will whereby he bequeaths his undivided one-third share in the HUF assets to his HUF, so that the HUF continues with two coparceners B and C.
(c) At the time of the death of A he has left no wife, but two daughters D and E.
(d) The question is whether after passing of the Amendment Act, D and E get any right in the properties and assets of the HUF.
S. 6 of the Act as it stood at the time of the death of A (i.e., prior to the amendment) reads as under :
“6. 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.
Explanation 1 : For the purposes 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.
Based on the provisions of S. 6 of the Act as at the time of death of A read with Explanation 1 to the said Section, the share of a deceased coparcener of the HUF is to be determined as if a partition of the property has taken place immediately before his death. Accordingly, in the example given above, there being three coparceners of the HUF A had one-third undivided share in the HUF property, which devolved upon the HUF as per his will.
It is significant to note that S. 6 of the Act (as amended) prescribes that on and from the commencement of the Amendment Act, the daughter of a ‘coparcener’ by birth becomes a coparcener in her own right in the same manner as the son and gets the same rights in the coparcenary property as she would have had if she had been a son. However, on the date of commencement of the Amendment Act i.e., 9th September, 2005, A was no longer one of the coparceners. The two brothers B and C were the only coparceners of the HUF. It, therefore, follows that the two sisters D and E do not fall in the category of being the ‘daughters of a coparcener’ to qualify for any right under S. 6 of the Act as amended. Accordingly, it is submitted that in such a case the daughters would not be entitled to any right in the HUF property and assets.
The conclusion arrived at above is also supported by some court decisions.
The Supreme Court in the case of Sheela Devi and Ors. v. Lal Chand and Anr., [2007(1) MLJ 797] has clearly observed that the Amendment Act would have no application in a case where the succession was opened in 1989 when the father passed away.
In the case of Smt. Bhagirathi and Others v. S. Manivanan and Anr., (AIR 2008 Madras 250), the Madras High Court has held as under :
“13. A careful reading of S. 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression ‘partition’ as given in the explanation is to be attributed.
In the present case, admittedly the father of the present petitioners had expired in 1975. S. 6(1) of the Act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with S. 6(3), it becomes clear that if a Hindu dies after commence-ment of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the Act.
In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in S. 6. If the contention of the petitioners is accepted, it would amount to giving retrospective ef-fect to the provisions of S. 6 as amended in 2005. On the death of the father in 1975, the property had already vested with Class-I heirs including the daughters as contemplated in the unamended S. 6 of the Act. Even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stressed to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be re-opened. In this connection, we are also inclined to refer to the decision of M. Srinivasan, J., as His Lordship then was, reported in 1991(2) MLJ 199 (Sundarambal and Others v. Deivanaayagam and Others). While interpreting almost a similar provision, as contained in S. 29-A of the Hindu Succession
Act, as introduced by the Tamil Nadu Amendment Act 1 of 199, the learned single Judge had made the following observations :
“14. Under sub-clause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of the coparcener who were born even prior to 25th March, 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amended Act. The Section only makes a daughter a coparce-ner and not a sister. If a male Hindu had died before 25th March, 1989 leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as, on the date on which the Act came into force, her father was not alive. She had the status only as a sister-a-vis her brother and not a daughter on the date of the coming into force of the Amendment Act . . . . . .”.
It is submitted that the sentence “But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amend-ment Act” quoted by the Madras High Court in the said judgment is from the same Court’s earlier judgment in Sundarambal’s case, is quite significant and throws light on the hypothetical question raised in this article.
There is one more court decision on the effect of the Amendment Act, again from the Madras High Court. In the case of Valliammal v. Muniyappan, [2008 (4) CTC 773], the Madras High Court has observed as under :
“6. In the plaint, it is stated that the father of the plaintiffs died about thirty years prior to the filing of the suit. The second plaintiff as P.W.1 has deposed that their father died in the year 1968. The Amendment Act 39 of 2005 amend-ing S. 6 of the Hindu Succession Act, 1956 came into force on 9-9-2005 and it conferred right upon female heirs in relation to the joint family property. The contention put forth by the learned Counsel for the appellant is that the said Amendment came into force pending disposal of the suit and hence the plaintiffs are entitled to the benefits conferred by the Amending Act. The Amending Act declared that the daughter of the coparcener shall have the same rights in the coparcenary property as she would have had if she had been a son. In other words, the daughter of a coparcener in her own right has become a coparcener in the same manner as the son insofar as the rights in the coparcenary property are concerned. The question is as to when the succession opened insofar as the present suit properties are concerned. As already seen, the father of the Plaintiffs died in the year 1968 and on the date of his death, the succession had opened to the properties in question. In fact, the Supreme Court in a recent deci-sion in Sheela Devi and Ors. v. Lal Chand and Anr., 2007 (1) MLJ 797 (SC) considered the above question and has laid down the law as follows :
19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer the right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application.
In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merit. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of the present case.”
Based on the above and other supporting decisions, the Madras High Court has in the recently decided case of S. Seshachalam v. S. Deenadayalan and Ors., (MANU/TN/1956/2000) taken a similar view rejecting the claim of daughters of a coparcener, who had died in 1965.
Therefore, it is clear that a daughter would get benefit of the Amendment Act only if her father is alive at the time of coming into force of the Amendment Act. Going back to the hypothetical question raised in this article, the two sisters D and E would not be entitled to any right under S. 6 of the Act as amended.
