{Analysis of Section 6
of the Hindu Succession (Amendment) Act, 2005 (3/3)}
By: Nikhil Sukhija
By: Nikhil Sukhija
Taking que from the last two
articles of the series, in this article I have attempted to prove the reason as
to why is Danamma and Ors. v. Amar and Ors. (AIR 2018 SC 721)
is a bad precedent and must
be addressed as soon as possible by the Supreme Court of India.
Issue framed by Hon’ble Supreme
Court in Danamma’s case is as follows:
4. In the aforesaid backdrop,
the question of law which arises for consideration in this appeal is as to
whether, the Appellants, daughters of Gurulingappa Savadi, could be denied
their share on the ground that they were born prior to the enactment of the Act
and, therefore, cannot be treated as coparceners? Alternate question is as to
whether, with the passing of Hindu Succession (Amendment) Act, 2005, the
Appellants would become coparcener “by birth” in their “own right in the same
manner as the son” and are, therefore, entitled to equal share as that of a
son?
Note:
1. In
the Para 21 of Danamma’s Case, Hon’ble Supreme Court followed the judgement of
full bench of Bombay high court, namely, Badrinarayan Shankar Bhandari v.
Omprakash Shankar Bhandari[1]
(Bombay High Court case) that has been discussed in the first article of the
series. It is noted in Danamma’s case that:
The Full
Bench held that Clause (a) of Sub-section (1) of Section 6 would be prospective
in operation whereas Clause (b) and (c) and other parts of Sub-section (1) as
well as Sub-section (2) would be retroactive in operation. It held that amended
Section 6 applied to daughters born prior to June 17, 1956 (the date on which
Hindu Succession Act came into force) or thereafter (between June 17, 1956 and
September 8, 2005) provided they are alive on September 9, 2005 i.e. on the
date when Amended Act, 2005 came into force. Orissa, Karnataka and Delhi High
Court have also held to the same effect.
2. That
in Bombay High Court case under Paragraph 47 learned full bench observed that
in a “Case of a Hindu, who died prior to 9 September 2005 continues to be
governed by pre-amended Section 6”. In Para 48 of Bombay High Court case,
it is held by the Hon’ble full bench that the Amendment Act does not indicate
in any manner that notional partition would not be valid. While the case has been observed but the principles of
the same has not been duly followed in Danamma’s case.
4 Section6(1)(a) is
prospective in operation. Section 6 (1) (a) read as “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;”
Coming to the case of
Phulavati, whose principles are followed in the case of Danamma. Para 23 of
Phulavati’s case referred under Para 22 of Danamma’s case states “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. Disposition or alienation including partitions which may have taken place
before 20-12-2004 as per law applicable prior to the said date will remain
unaffected. Any transaction of partition effected thereafter will be governed
by the Explanation”. What has been observed in Danamma’s case is itself not
followed in the case as the father of appellants died in 2001, that is, before
the amendment came into being. Therefore, appellant (daughters) were not
“living daughters of living coparcener” as on 9-9-2005, irrespective of their
birth. The alienation that might have occurred prior to 20-12-2004 will remain
unaffected as observed in Danamma’s case, is itself not followed because the
notional partition that took place in 2001 according to pre-amended provisions
of Hindu Succession Act, 1956 is considered to be a naught on the ground that
it was not a registered partition. While the Amendment to Hindu Succession Act,
2005 nowhere mentions that statutory partitions are not valid.
Hon’ble Supreme Court in Danamma’s case followed the principle laid down in Ganduri Koteshwaramma and Ors. v. Chakiri Yanadi and Ors.[3] which stated that the amended Section 6 will apply to a partition suit wherein the final decree was not passed before the date of commencement of the Amended Act of 2005. It is submitted that the crystallization of rights of daughters in 2005 as the final decree by trial court was not passed till 2007 was not an issue highlighted by hon’ble court itself in Para 4. The issue which stated “whether, with the passing of Hindu Succession (Amendment) Act, 2005, the Appellants would become coparcener “by birth” in their “own right in the same manner as the son” and are, therefore, entitled to equal share as that of a son?” was itself answered in the judgement by Hon’ble Supreme Court in para 22 whereby it stated while following Phulavati’s case that amendment is applicable to living daughters of living coparcener as on 9-9-2005. It is submitted that it is not in dispute that living coparcener (father) died in the year 2001 which is before the date prescribed in Phulavati’s case and followed in Danamma’s case.
(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;”
When clause (1) which states that Section 6 (1) (a) is
prospective in operation, is applied on to the core issue noted above,
i.e, whether, with the passing of Hindu Succession (Amendment) Act,
2005, the Appellants would become coparcener “by birth” in their “own right in
the same manner as the son” and are, therefore, entitled to equal share as that
of a son? It is itself evident that the aforesaid section shall apply
to the cases where daughters are born “after” the amendment came into being.
Hon’ble Supreme Court in Danamma’s case followed the principle laid down in Ganduri Koteshwaramma and Ors. v. Chakiri Yanadi and Ors.[3] which stated that the amended Section 6 will apply to a partition suit wherein the final decree was not passed before the date of commencement of the Amended Act of 2005. It is submitted that the crystallization of rights of daughters in 2005 as the final decree by trial court was not passed till 2007 was not an issue highlighted by hon’ble court itself in Para 4. The issue which stated “whether, with the passing of Hindu Succession (Amendment) Act, 2005, the Appellants would become coparcener “by birth” in their “own right in the same manner as the son” and are, therefore, entitled to equal share as that of a son?” was itself answered in the judgement by Hon’ble Supreme Court in para 22 whereby it stated while following Phulavati’s case that amendment is applicable to living daughters of living coparcener as on 9-9-2005. It is submitted that it is not in dispute that living coparcener (father) died in the year 2001 which is before the date prescribed in Phulavati’s case and followed in Danamma’s case.
Different
scenarios in facts of Danamma’s case
Following
are the different scenarios that may be applied to the facts of Danamma’s case:
1. Distribution of shares in the property on application of pre-amended Section 6 of Hindu Succession Act, 1956?
In the
facts of Danamma’s case, on the death of male Hindu (father), 2 sons, 2
daughters and a widow was left behind. It has
been held by Hon’ble Supreme Court in the case of Gurupad v. Hirabai[4], (a
case under the unamended section 6) that a widow gets
share equal to that of sons.
(i) When a male Hindu dies after the commencement of the Hindu Succession Act,
1956, having at the time of his death an interest in Mitakshara coparcenary
property, his interest in the property will devolve by survivorship upon the
surviving members of the coparcenary (vide Section 6).
(ii) To
proposition (i), an exception is contained in Section 30 Explanation of theAct, making it clear that notwithstanding anything contained in the Act, the
interest of a male Hindu in Mitakshara coparcenary property is property that
can be disposed of by him by will or other testamentary disposition.
(iii) A
second exception engrafted on proposition (i) is contained in the proviso to
Section 6, which states that if such a male Hindu had died leaving behind a
female relative specified in Class I of the Schedule or a male relative
specified in that Class who claims through such female relative surviving him,
then the interest of the deceased in the coparcenary property would devolve by
testamentary or intestate succession, and not by survivorship.
(iv) In
order to determine the share of the Hindu male coparcener who is governed by
Section 6 proviso, a partition is effected by operation of law immediately
before his death. In this partition, all the coparceners and the male Hindu's
widow get a share in the joint family property.
(v) On
the application of Section 8 of the Act, either by reason of the death of a
male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On
a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family
property has been distributed in accordance with Section 8 on principles of
intestacy, the joint family property ceases to be joint family property in the
hands of the various persons who have succeeded to it as they hold the property
as tenants in common and not as joint tenants.
On applying the above principle of notional
partition to the facts of Danamma’s case, it can be observed that appellants
were entitled to 1/20th share in father’s share of coparcenary
property. The appellants preferred to appeal at the Supreme Court taking the
ground that amended Section 6 should apply as according to amended Section 6,
daughters have the same rights in the coparcenary property as she would have
had if she had been a son. In the current scenario, where in Danamma’s case,
daughters are given 1/5th share in the property, that is, equal
to the shares of the sons.
Following tables explains the distribution of shares to daughters in pre-amended Section 6 and amended Section 6 of Hindu Succession Act, 1956.
Distribution of shares to daughters in accordance to pre-amended Section 6 of Hindu Succession Act, 1956
Table 1
Son-1
(1/4)
|
Son-2
(1/4)
|
Father
(1/4)
|
Widow
(1/4)
|
Son-1
|
|||
Son-2
|
|||
Daughter-1
|
|||
Daughter-2
|
|||
Widow
|
Following can be observed about the distribution of shares had the shares been distributed in accordance with pre-amended Section 6 of Hindu Succession Act, 1956:
- Sons are allotted share of 1/4th in accordance to the section
- Widow is allotted her share equal to that of sons as was laid down in Hindu Succession Act, 1937 and followed in judgements of Supreme Court.
- On the basis of explanation to Section 6, notional partition creates an interest of father in the coparcenary property who is deemed to take his share immediately before his death.
- That share is distributed amongst the heirs of class I which includes sons, daughters, widow, etc.
- On the basis of the mechanism explained in the case of Gurupad v. Hirabai, daughters were entitled to 1/20th share each ( 1/4x5).
Table 2
Distribution of shares to daughters in accordance
to amended Section 6 of Hindu Succession Act, 1956
Son-1
(1/6th)
|
Son-2
(1/6th)
|
Daughter-1
(1/6th)
|
Daughter-2
(1/6th)
|
Widow
(1/6th)
|
Father
(1/6th)
|
Son-1
|
|||||
Son-2
|
|||||
Daughter-1
|
|||||
Daughter-2
|
|||||
Widow
|
Following is the distribution of shares in the case
where devolution takes place after the amendment of Section 6 in Hindu
Succession Act, 1956
1. Daughters have same rights in the coparcenary property as the sons, therefore daughters, sons and widow acquire 1/6th share each in the property on the premise of notional partition as contained in Explanation of Section 6 (3).
2. The share of father is divided amongst the heirs of Class I.
3. After the division of shares, sons, daughters and widow acquire 1/5th share in the property.
Therefore, it can be noticed that the appellants
went to Supreme Court and prayed for their share in accordance with amended
Section 6 because there was a possibility for them of acquiring 1/5th share
as against 1/20th share in the property that should have been
ideally provided as shown above.
To conclude, it is the need of the hour for the
Hon’ble Supreme Court of India to address the reignited confusion regarding the
interpretation of Section 6 of the Hindu Succession (Amendment) Act, 2005.
[1] AIR 2012 SC 169
[2] AIR 2016 SC 1169
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