Daughter’s Equal Participation in Coparcenary Property: Reason for the Amendment of Section 6 of the Hindu Succession Act, 1956 [1]
{Analysis of Section 6 of the Hindu Succession (Amendment) Act, 2005
(1/3)}
- By: Nikhil Sukhija
Introduction
The analysis
of Section 6 of the Hindu Succession (Amendment) Act, 2005
has been divided into 3 parts. This article highlights the reason for the
amendment of Section 6 of the Hindu Succession Act, 1956.
In order to better
understand the reason for the amendment of Section 6 of the Hindu Succession
Act, 1956, it is imperative to get familiarize with the difference between
Intestate Succession & Doctrine of Survivorship and the concept of notional
partition.
Intestate Succession
Section 3
(1) (g) of Hindu Succession Act, 1956 states that:
·
A person is deemed to die intestate in respect of
property of which he or she has not made a testamentary disposition capable of
taking effect.
Doctrine of Survivorship
Doctrine of survivorship states that the property after the death of the
common ancestor devolves by the survivor. The sons of the family have a birth
right in the property by virtue of the following two rules:
·
Females will not inherit.
Concept
of Notional Partition prior to Hindu Succession (Amendment) Act, 2005
According to D.F. Mulla,
Principles Of Hindu Law, Vol.1 (21st ed., 2013), followed in
the case of Danamma and Ors. v. Amar and Ors, (AIR
2018 SC 72), A Hindu male can hold two types of
property. The first one is ancestral property that devolves by the rule of
survivorship. The second one is separate property that devolves according
to the rules of intestate succession. After partition, the property is
considered to be separate property of the man which devolves upon his heirs by
intestate succession. Thus, the concept of notional partition was introduced in
explanation I of Section 6 of the 1956 Act. It mandated a legal
presumption that a partition had taken place immediately before the death of
the coparcener who had, either a female relative specified in class I of the
schedule of the Act, or a male relative who claimed through such a female
relative. This entailed that the property would devolve by intestate
succession and not by the rule of survivorship. This legal fiction was
created to protect the interests of the daughter of the deceased. As the
notionally partitioned property would be considered to be separate property,
she would be entitled to a share out of it.
This assured the daughter some interest in the father’s property. Before
the act, entire undivided property would devolve to surviving coparceners as
per the rule of survivorship, leaving the daughter remedy-less. This was
the first step, though a cursory one, in ensuring that there is parity between
male and female successors. However, the result of this provision was that sons
of the deceased coparcener could claim both as heirs and later as surviving
coparceners. This is because notional partition is only a tool to
demarcate the share that the deceased would have received and it does not
disrupt the coparcenary property as whole. Hence, the rest of the
undivided property continues as coparcenary property. This enabled the male
members to get a share larger than their female counterparts.
Reason for the
amendment of Section 6 by way of Hindu Succession
(Amendment) Act, 2005
1. The
reason for the introduction of Hindu Succession (Amendment) Act, 2005 was
explained by Hon’ble full bench of Bombay High Court in the case of Badrinarayan
Shankar Bhandari and Ors. vs. Ompraskash Shankar Bhandari and
Ors.[2]. Following are the important
paragraphs which noted the reason for the amendment of Hindu Succession
(Amendment) Act, 2005.
“2.
Section 6 of the Act deals with devolution of interest of a male Hindu in
coparcenary property and recognizes the rule of devolution by survivorship
among the members of the coparcenary. The retention of the Mitakshara
coparcenary property without including the females in it means that the females
cannot inherit in ancestral property as their male counterparts to. The
law by excluding the daughter from participating in the coparcenary ownership
not only contributes to her discrimination on the ground of gender but also has
led to oppression and negation of her fundamental right of equality guaranteed
by the Constitution.
3. It
is proposed to remove the discrimination as contained in section 6 of
the Hindu Succession Act, 1956 by giving equal rights to daughters in
the Hindu Mitakshara coparcenary property as the sons have. Section
23 of the Act disentitles 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. It is also proposed to omit the said
section so as to remove the disability on female heirs contained in that
section.
4. The
above proposals are based on the recommendations of the Law Commission of India
as contained in its 174th Report on 'Property Rights of Women: Proposed Reform
under the Hindu Law”.
To
summarize the findings of Badrinarayan Shankar Bhandari and
Ors. vs. Ompraskash Shankar Bhandari and Ors, it can be observed
that:
· Prior to the amendment of Section
6, a female relative specified in class I of the schedule was entitled to
interest in the coparcenary property only upon the death of male Hindu.
· After the Amendment Act of
2005, Section 6 was amended and it made a daughter
of a coparcener, a coparcener by birth in the same manner as the son,
irrespective of the fact whether the male Hindu dies or not.
· With the Hindu Succession
(Amendment) Act, 2005, Section 23 of principal act has been
repealed. Prior to the amendment, Section23 of
the Act 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. Therefore, the disability on the female heirs
contained in the Section is removed by insertion of amended Section 6.
· To conclude, it can be stated
that the concept of survivorship which excluded female heirs from getting any
share in the property has been done away with as the females are now by birth a
coparcener in the same manner as the son.
The next article analyses two
judgements of the Hon’ble Supreme Court of India. Prakash & Ors. v.
Phulavati & Ors. (AIR 2016 SC
769) on one hand and Danamma and Ors. v. Amar and Ors.
(AIR 2018 SC 721) on
the other hand.
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[2] AIR 2014 Bom 151
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