Editor’s Note Two articles by the learned author on the same subject were published in the Journal, (BCAJ — January 2009 and BCAJ — May 2010). This article explains the subject further.
Hindu Law is quite complex and it has become more complex in spite of (or possibly as a result of) its codification. As has been seen in case of other laws enacted by the Parliament, imprecise language has often resulted in spate of litigation for the exact interpretation of the law.
However, one cannot blame only the Legislature. One additional reason for the problem is that while some part of Hindu Law has been codified (e.g., succession, adoption, marriage), the rest of customary Hindu Law still remains uncodified. Subjects like joint family, coparcenary, etc. have not yet been codified. Moreover, rules under the old Hindu Law differ in respect of different schools of Hindu Law like Mitakshara, Dayabhaga, etc.
In my two articles on ‘Daughter’s Right in Coparcenary’ (BCAJ — January 2009 Page 509 and BCAJ — May, 2010 Page 15) I attempted to answer some of the questions affecting a daughter’s right in coparcenary and attempted to analyse some decided case law on the subject.
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. Section 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 x x x
(2) to (5) x x x
Section 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.
In customary Hindu Law, according to Mitakshara School, the female heirs were not members of the coparcenary. With a view to remove gender discrimination in our laws and to give equal status to a female, various States in the country made State amendments in the Act conferring right on a daughter in the coparcenary property. However, such amendments were not done uniformly by all the States resulting in different provisions applicable in different States. Moreover, while certain rights were conferred on unmarried daughters, there were restrictions as to the rights of a married daughter. Therefore, the Amendment Act was supposed to bring about the uniformity in the country so as to give benefit to a daughter, irrespective of her being married or otherwise.
It is unfortunate that the amendments brought about by the Amendment Act have resulted in a large number of court cases spread over the country.
In my last article I have dealt with a question whether a daughter would get benefit of the Amendment Act if her father was not alive at the time of coming into force of the Amendment Act. In the present article I propose to deal with another controversy on interpretation of the amended section.
Section 6(1) of the Act starts with words ‘on and from’ and goes on to deal with ‘on and from’ the commencement of . . . . . . the daughter of a coparcener shall by birth become a coparcener’. The questions which have arisen before courts in this behalf are (i) what do the words ‘on and from’ signify and (ii) whether the words ‘by birth become a coparcener’ make the Amendment Act retrospective.
In the case of Sugalabai v. Gundappa & Ors., ILR 2007 Kar. 4790 [also 2008(2) Kar LJ 406], the Karnataka High Court had occasion to consider the effect of the words ‘on and from’. It has observed that the words ‘on and from’ mean ‘immediately and after’ the commencement of the Act. It is observed that in other words as soon as the Amendment 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. The Court also observed that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners and it was held that even a daughter who was born prior to the Amendment Act became a coparcener immediately on and after the Amendment Act.
It has been held in the case of Pravat Chandra Pattnaik & Ors. v. Sarat Chandra Pattnaik & Anr., AIR 2008 Orissa 133 that the aforesaid amendment was enacted for removing the gender discrimination that prevailed leading to oppression and negation of the fundamental right of equality to women and to render social justice by giving them equal status in society. The Act came into force from 9th September 2005 and the statutory provisions u/s.6 of the Hindu Succession Act, 1956 thereof created a new right. The provisions are not expressly made retrospective by the Legislature. The Act is clear and there is no ambiguity. Therefore, words cannot be interpolated. They do not bear more than one meaning. The Act is therefore, prospective. It creates a substantive right in favour of the daughter. The daughter gets a right of a coparcener from the date when the Amended Act came into force. Consequently, the contention that only the daughters who were born after 2005 would be treated as coparceners was not accepted. It specifically clarifies that the daughter gets a right as a coparcener from the year 2005, whenever she may have been born.
In a very recent unreported judgment, the Bombay High Court has referred to the above cases with approval and taken similar view (see Sadashiv Sakharam Patil v. Chandrakant Gopal Desale — Appeal from Order No. 265 of 2011 etc. decided on 6th September, 2011). Accordingly, these decisions close (at least for the time being) that for the purpose of getting benefit of the amended provision it is not necessary that the birth of the daughter should also be after commencement of the Amendment Act.
Therefore, as per the Law laid down by Courts in above cases, on coming into force of the Amendment Act i.e., 9th September, 2005, the daughter of a coparcener becomes by birth a coparcener in her own right in the same manner as the son even if she was born before the Amendment Act coming into force.
The Karnataka High Court had an occasion to consider one new angle on the same subject. The question which arose before the Court was that while the daughter gets a right to be a coparcener from birth when can the right be said to start. In the case of Pushpalatha N. V. v. Padma V. reported in AIR 2010 Karnataka 124, the Court has inter alia held as follows:
“The Act when it was enacted, the Legislature had no intention of conferring rights which are conferred for the first time on a female relative of a coparcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a coparcener was not conferred the status of a coparcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to coparcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the act came into force, i.e., 17th June, 1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a coparcener, who was born prior to 17th June, 1956. Therefore, in this context also the opening words of the amending section assume importance. The status of a coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a coparcener who is born after the Act came into force alone will be entitled to a right in the coparcenary property and not a daughter who was born prior to 17th June, 1956.”
Therefore, sum total of the principles laid down by the case law discussed above, is that while on coming into force of the Amendment Act dated 9th September, 2005, the daughter of a coparcener becomes by birth a coparcener in her own right in the same manner as the son even if she was born before the Amendment Act, such a right is subject to the condition that she is born after 17th June, 1956 i.e., coming into force of the Act. The daughter born before the Act came into force does not get any such right.
