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Section 6, Hindu Succession Act- Resolved Yet Unsolved Possibilities

"We must work together to ensure the equitable distribution of wealth, opportunity, and power in our society."-Nelson Mandela

The Constitution of India grants rights to every Indian Citizen, especially in the shape of fundamental rights, irrespective of his caste, creed, gender and race for his protection, assertion, defence and livelihood. Every citizen of India is guaranteed equality before law and equal protection of the laws, irrespective of his gender, caste, creed, and race. Articles 14, 15 and 16 of the Constitution not only deter discrimination against women, but also in appropriate circumstances provide a free hand to the State to deliver protective discrimination, especially in favour of women. Despite the equality so guaranteed by the Indian Constitution, and other laws, women in India were not entitled to any share in the property held by a male, in earlier times.

Prior to the enactment of the Hindu Women's Right to Properties Act 1937, women were not entitled to a share in the Joint Family Property, and succession was governed by survivor ship. As per the rule of survivor ship, on the death of a member of joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which included only the male members of the family.

Post-independence, the laws relating to intestate succession amongst the Hindus are governed by the Hindu Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance in the matters of succession among the Hindus. However, the principles governing succession of the Coparcenary property were distinct and different under the Act.

The term Coparcenary has been defined in Collins Dictionary as - "a form of joint ownership of property, especially joint heirship". Black's Law Dictionary defines it as "persons to whom an estate of inheritance descends jointly, and by whom it is held as an entire estate". Oxford Dictionary further explains it as - "A person who shares equally with others in the inheritance of an undivided estate or in the rights to it". Mayne's "Hindu Law and Usage" explains Coparceners by stating that, "The question in each case will be, who are the persons who have taken an interest in the property by birth. The answer will be, that they are the persons who offer the funeral cakes to the owner of the property, that is to say, the three generations next to the owner in unbroken male descent". Thus, it clearly states that the male members, who traditionally would have offered the funeral cakes to their ancestors, would by birth have rights in the coparcenary property i.e. right of survivorship.

The term 'Coparcenary' is a much narrower body than a joint family, and consists of only those persons who have taken by birth, an interest in the property of the holder, for the time being, and who can enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property, and only those males in his male line who are not removed from him by more than three degrees. Thus, while a son, a grandson or a great-grandson is a coparcener with the holder of the property, the great-great- grandson cannot be a coparcener with him, because he is removed by more than three degrees from the holder. The share of coparceners in the joint coparcenary property is always fluctuating, which gets diminished and enlarged with the birth and death of a coparcener in the family.

The coparcener must be a member of the family, but a member of the family need not always be a coparcener. An HUF, (Hindu Undivided Family), can consist of a very large number of members, including wives as well, and distant blood relatives. The desire to retain the Mitakshara coparcenary, along with principals of intestate succession in the Act led to many complexities. While a daughter would get only a share from the presumed (notional) partitioned property of her father, the sons continued to get a share in the coparcenary property, as well as the notionally partitioned property.

The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, with regard to the joint and undivided property, that he, that particular member, has a definite share in the said property. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'. If a Mitakshara coparcener dies, immediately on his death his interest devolves on the surviving coparceners. The eldest of the coparcener is called the Karta of the family.

Article 236 of the Mulla's Hindu Law defines "Karta" as: "Manager - Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta."

In a HUF, the responsibility of the Karta is to manage the HUF property. He is the custodian of the income and assets of the HUF. He is liable to make good to other family members, with their shares of all sums, which he has misappropriated or which he has spent for purposes other than those in which the joint family was interested. His role is crucial. He is entrusted not only with the management of land/assets of the family, but also is entrusted to do the general welfare of the family. His position is different from the manager of a company or a partnership. His role as a manager of the property can be questioned by a coparcener, if the same is based upon fraud, misrepresentation or is not for legal necessity of the coparcenary.

The basic concept of coparcenary prior to the amendment of 2005 in Hindu Succession Act was that only male members of a joint Hindu family could constitute a coparcenary, completely excluding the female members of the family. This concept has been substantially amended with the amendment of Section 6 of the Act. The said 2005 amendment also omitted Section 23 of Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.

The amended Section 6 of The Hindu Succession Act, 1956, which came in effect vide Act 39 of 2005 w.e.f. from 09-09-2005 reads as under :-

S.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) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. -For the purposes of this sub-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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. -For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(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.

Thus, the amendment balanced the property rights of male and female siblings with regard to the rights in the coparcenary property. Though the amendment was clearly to be implemented from 09-09-2005 yet, soon after the amendment, the question regarding the prospective or retrospective operation of the amendment came up before few high courts.

One set of thought was that in the absence of any express provision or an implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. It was based on the legal principle that succession never remains in abeyance, and opens on the date of the death of the testator, and the rights of the heirs get crystallised on that day, even if partition by metes and bounds had not taken place. Thus, the subsequent amendment cannot undo, what has been done earlier, by re-opening the partition, even if notional.

The counter thought was that the amendment being a piece of social/welfare legislation, to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.

The said question of the amendment being prospective or retrospective came before a division bench of Karnataka High Court in 2010 (57) RCR (Civil) 160 Pushpalatha N.V. v. V. Padma, which held that:

"Therefore, it follows that 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 co-parcenary 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., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a co-parcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a co-parcener is conferred on a daughter of a co-parcener 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 co-parcener who is born after the Act came into force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956.

57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of coparcenary property and co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of coparcenary governed by Mitakshara school is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a coparcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a coparcener ensures to her benefit by birth makes the said provision retro active. Though on the date of the birth she did not have such right because of the law governing on that day by amendment the law, such a right is conferred on her from the date of the Act of 1956. A historical blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful right to which the daughter was entitled by virtue of the Constitution is restored to her from the date of her birth. This, the Parliament has done by using the express words that a daughter of a coparcener shall by birth become a coparcener in her own tight in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son."

Thus, the said Division Bench held that the status of a coparcener is conferred on the daughter by birth, under the amended section, if she is born after 17-06-1956, i.e. the day on which the Hindu Succession Act 1956, came into force. Thus, by virtue of the amendment in section 6, the daughter, as coparcener in a Joint Hindu Family, has the same rights in the coparcener properties, as she would have, had if she had been a son.

The said question also came to be analysed by the Full Bench of Bombay High Court in 2014(4) RCR (Civil) 620 Shri Badrinarayan Shankar Bhandari and others v. Ompraskash Shankar Bhandar,

While deciding the below mentioned questions of law: -

• Whether Section 6 of the Hindu Succession Act 1956 as amended by the Amendment Act is prospective or retrospective in operation?

• Whether Section 6 of the Hindu Succession Act,1956 as amended by the Amendment Act,2005 applies only to daughters born after 9.9.2005?

It was held that

"52. It is necessary to note that the pre-amended Section 6 dealt only with the devolution of the property on the death of the coparcener and therefore the marginal note to pre-amended Section 6 was "Devolution of interest in coparcenary property". However, in the amended Section 6, only sub-section (3) provides for devolution of property upon the death of the coparcener. In other words, sub-section (1) of pre-amended Section 6 has been converted into sub-section (3) of the Amended Section 6 with certain modification. But sub-section (1) of Section 6 is entirely new provision, which confers new rights on a daughter of coparcener without contemplating death of the coparcener. It appears to be sheer inadvertence on the part of the draftsman of the Amendment Act, 2005 that marginal note of Section 6 is not amended, though Parliament drastically amended existing law on the subject, by conferring on crores of daughters rights in the coparcenary property, even without reference to death of the coparcener in sub-section (1) & sub-section (2) of the Amended Section 6.

53. In view of above discussion, in our view the correct legal position is that Section 6 as amended by the 2005 Amendment Act is retroactive in nature meaning thereby the rights under Section 6(1)(b) and (c) and under sub-Rule (2) are available to all daughters living on the date of coming into force of the 2005 Amendment Act i.e. on 9 September 2005, though born prior to 9 September 2005. Obviously, the daughters born on or after 9 September 2005 are entitled to get the benefits of Amended Section 6 of the Act under clause (a) of sub section (1). In other words, the heirs of daughters who died before 9 September 2005 do not get the benefits of amended Section 6."

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"59. Having carefully gone through the above reasoning and conclusion in Pushpalatha case (supra), while we agree that the legislative intent was to protect interest of the third parties who acquired interests in the coparcenary property and also to protect the interest of the scarceness here coparcenary became their separate properties, as already discussed in paragraph 45 hereinabove, it is not possible to agree with the view in Pushpalata case (supra) that a daughter of a coparcener born before 9 September 1996 (sic 2005) became a coparcener by birth anterior to the amendment. As already indicated earlier, clause (a) of sub-section (1) of amended Section 6 only applies to daughter born on or after the date of commencement of the Amendment Act i.e. born on or after 9 September 2005. It is only by virtue of clauses (b) and (c) of sub-section 1 of Amended Section 6 that the daughters born before 9 September 2005 acquired rights in coparcenary property and acquired the status of scarceness with effect from 9 September 2005. For the reasons already indicated in this judgment, the view taken by the Karnataka High Court in Pushpalata case (supra) that a daughter of the coparcener gets right in coparcenary property with retrospective effect from 17 June 1956 or from the date of birth prior to 9 September 2005 does not commend to us. As held by us earlier, the provisions of Amended Section 6 are retroactive in operation, and daughter living on 9 September 2005 gets rights in coparcenary property with effect from 9 September 2005.

60. In the above view of the matter, so far as questions (b), (c) and (d) are concerned, we hold that the Amendment Act applies to daughters born any time provided the daughters born prior to 9 September 2005 are alive on the date of coming into force of the Amendment Act i.e. on 9 September 2005. There is no dispute between the parties that the Amendment Act applies to daughters born on or after 9 September 2005."

Thus, it was laid down by the full bench of Bombay high court that the said amendment is prospective in nature.

Thus, whereas the Karnataka High Court interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, the Full Bench of the Bombay High Court interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. Similarly, conflicting views were taken by different High Courts regarding the applicability of the said amendment.

The said question of law ultimately came to be decided by the Supreme Court in Prakash v. Phulavati, 2015 (4) RCR (Civil) 9522, whereby it was held:

"22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born." (emphasis supplied by the writer).

The Crux of this judgement is that, if the coparcener (father) had passed away prior to 09.09.2005, i.e. prior to the date when the said amendment was enforced, the living daughter of the coparcener would have no right to coparcenary property. Thus, for a daughter to claim any right in the property or exercise any right of partition for the same, she must prove that her father was alive on 09-09-2005 else she would lose her claim in the same.

Although the said decision of the supreme court had put this controversy at rest, but once again the said position was reanalysed by the supreme court in Danamma @ Suman Surpur & Anr. v. Amar & Ors. 2018 (1) RCR (Civil) 863.

As per the facts of that case, the appellants were the daughters of a coparcener who had died in 2001. The respondents were the sons of the deceased, who had filed a suit for partition of the property in 2002. They claimed that the daughters were born prior to 1956, the enactment of the Act. The trial court had denied any share to the daughters. Relying upon Pushpalatha case (Supra) the appeals to High Court were also dismissed. However, the Supreme Court, while replying upon Phulavati's case and discussing the ratio laid down in Bombay Full Bench Judgement Supra reversed the impugned judgements.

The question was whether by the virtue of the amendment, the daughters would become coparceners "in the same right as the sons". The Supreme Court considered Phulavati's case (supra) and agreed with the findings, yet applied a different principle while granting relief to the daughters. It was held that partition is not complete with passing of a preliminary decree alone and attains finality only with the passing of the final decree. The Supreme Court further held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.

It was laid down that

"23. The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that "the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change."

24. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b)."

Since the principle laid down in Phulavati case supra, was agreed upon, and still continues to be good law, a daughter whose father had died before the amendment came into force, cannot claim the benefit of the amending Act. However, going strictly by the ratio and facts in Danamma's case, supra, a daughter will be entitled to the benefits of the amendment Act in a pending suit filed after 2005, regardless of when her father died.

The said conflict in the reasoning of both these judgements further created a confusion with regard to the correct position of law with regard to the applicability of the amendment, and ultimately again in Vineeeta Sharma v. Rakesh Sharma, Civil Appeal No. 32601 of 2018, vide order dated 05-12-2018, the Supreme Court while hearing a similar question of law ordered that :

"There is a conflict of opinion in two Division Bench Judgments of this Court i.e. Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343 with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005.

In view thereof, this matter has to be heard by a Bench of three Judge. Though we are sitting in combination of three Judge Bench, learned counsel for the respondent has drawn our attention to Order VI Rule 2 of the Supreme Court Rules, 2013 as per which the matter is to be referred to Hon'ble the Chief Justice and it is for the Hon'ble Chief Justice to constitute a Bench for hearing the matter.

We accordingly direct the Registry to place the matter before Hon'ble the Chief Justice for constitution of the Bench."

Although the said Civil Appeal was ultimately ordered to be heard along with similar matters already pending, yet the final outcome of the same is still awaited. Thus, despite so many years, the fate of the amendment, and the scope of the its interpretation, is still under confusion, due to the unsettled issue, and apparent conflict in judicial pronouncements.

Phulvati's case, supra, is based upon the cardinal principle of law that succession does not remain in abeyance, and the rights of the heirs qua succession are settled immediately at the time of the death. Thus, the court clearly held that the amendment in the Act can only be effective if the death of the father occurs after the date of enactment i.e. is after 09-09-2005. In the absence of any express provisions, it was held that the Act cannot be applied retrospectively, even if it is a social legislation. Thus, accordingly, the amended provision shall only apply to the "living daughters of living coparceners" at the time of enactment and the transactions prior shall remain unaffected.

It may also be pertinent to mention here that the said amendment in section 6 has also proceeded to remove the distinction between a married and an unmarried daughter, and the 2005 amendment gives equal rights to daughters in the coparcenary, as much as it gives to the sons.

As discussed above in the preceding paragraphs, that it has always been the position that the eldest of the coparceners is called the Karta of the Coparcenary, and has all the rights for the control and management of the coparcenary property.

An important question that still remains unsettled and unanswered is as to whether women or daughters (married and unmarried both) can be allowed to become managers or Karta of the joint hindu family, and manage the properties of the family, as such.

The question so involved may be of crucial importance, and is anticipated for the reason that daughters after marriage are usually uprooted from their father's home and are rooted to their matrimonial home i.e. husband's family, and thus may live far away from the joint family of their father/brothers, and staying in their husband's family, after their marriage, could be venerable to the influence of their husbands or husbands' families. However, not only these, but many other complex questions would arise regarding the inheritance and succession, in case of a married daughter residing elsewhere, acting as a female Karta. Thus, the said amendment of 2005 removing the distinction between the role of Karta, being a son or a daughter, and with no further distinction between a married and an unmarried daughter, or a daughter who is subsequently married, has wakened up a multiple range of complexities, which are though somewhat resolved but not fully solved by judicial precedents.

"Say not you know another entirely, till you have divided an inheritance with him." - Johann Kaspar Lavater

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

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