Devolution of Interest in Coparcenary Property in India

The Evolving Jurisprudence of Devolution of Interest in Coparcenary Property under Hindu Law in India

Introduction

The concept of coparcenary property and the principles governing the devolution of interest therein form a cornerstone of Hindu personal law in India. Historically, the Mitakshara school of Hindu law, which predominantly governs Hindu joint families, recognized a system where interest in coparcenary property devolved by survivorship among male members. The Hindu Succession Act, 1956 (hereinafter "HSA, 1956") was a significant step towards codifying and reforming these ancient rules. However, it initially retained certain traditional aspects of the Mitakshara coparcenary. A monumental shift occurred with the Hindu Succession (Amendment) Act, 2005 (hereinafter "Amendment Act, 2005"), which aimed to eradicate gender discrimination by conferring equal coparcenary rights upon daughters. This article critically analyzes the legal framework governing the devolution of interest in coparcenary property, tracing its evolution through legislative changes and landmark judicial pronouncements, particularly focusing on the implications of the Amendment Act, 2005, as interpreted by the Supreme Court of India.

Traditional Framework and the Hindu Succession Act, 1956 (Pre-Amendment)

Prior to the HSA, 1956, and even in its initial form, the Mitakshara law of coparcenary was characterized by specific features that largely excluded female heirs from coparcenary ownership.

Concept of Mitakshara Coparcenary

A Mitakshara coparcenary is a narrower body than a Hindu joint family. It traditionally consisted of only male members: a common male ancestor and his lineal male descendants up to three generations (sons, grandsons, and great-grandsons).[13] These coparceners acquired an interest in the ancestral property by birth.[15] The property was held in joint ownership, and no single coparcener had a defined share until partition. A key incident of coparcenary property was the right of survivorship, where upon the death of a coparcener, his undivided interest devolved upon the surviving coparceners, rather than passing by succession to his own heirs. A coparcenary required at least two male members to exist or continue.[19] Females, though members of the joint Hindu family, could not be coparceners.[19] Different schools of Hindu law, such as Mitakshara and Dayabhaga, had varying rules regarding property rights, with the Dayabhaga school, for instance, not recognizing the right by birth or survivorship in the same manner.[16]

Devolution under Original Section 6 of HSA, 1956

Section 6 of the HSA, 1956, as originally enacted, dealt with the devolution of interest in Mitakshara coparcenary property. It largely retained the rule of survivorship.[14, 17] The section stipulated that when a male Hindu died after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act.[18, 20]

However, a significant proviso was introduced. This proviso stated that if the deceased had left him surviving a female relative specified in Class I of the Schedule to the Act, or a male relative specified in that class who claimed through such a female relative, the interest of the deceased in the Mitakshara coparcenary property would devolve by testamentary or intestate succession, as the case may be, under the HSA, 1956, and not by survivorship.[14, 17, 18, 20] This proviso marked a departure from the strict rule of survivorship in specific circumstances, allowing female heirs in Class I (like daughters, widows, mothers) to inherit a share in the deceased's coparcenary interest.

The Role of Notional Partition (Explanation 1 to Section 6)

To ascertain the share of the deceased coparcener that would devolve by succession under the proviso, Explanation 1 to the original Section 6 introduced the concept of a "notional partition." This explanation provided that for the purposes of Section 6, 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.[3, 10, 12, 18] The Supreme Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum[3] emphasized that this statutory fiction of notional partition must be given its full effect. Once the share of the deceased was so determined, it would devolve upon his heirs according to the rules of intestate succession under Section 8 of the HSA, 1956, if he died intestate.

Position of Female Heirs (Pre-2005)

Even before the HSA, 1956, legislation like the Hindu Women's Right to Property Act, 1937, had attempted to improve the rights of Hindu women. Under this Act, a widow acquired her husband's interest in the joint family property, though not as a coparcener. This interest was a limited "Hindu woman's estate" and she had the right to claim partition.[7] The devolution of this interest was considered an "ex-coparcenary interest," and upon her death, it would typically revert to her husband's heirs.[8] Under the original HSA, 1956, while daughters and other Class I female heirs could inherit a share in the deceased coparcener's notionally partitioned interest, they did not become coparceners themselves.

The Hindu Succession (Amendment) Act, 2005: A Paradigm Shift

The Amendment Act, 2005, brought about a revolutionary change in the Mitakshara law of coparcenary by granting daughters the status of coparceners by birth, on par with sons.

Objectives and Key Changes

The Statement of Objects and Reasons for the Amendment Act, 2005, highlighted that the exclusion of daughters from participating in coparcenary ownership contributed to discrimination on the ground of gender and negated their fundamental right to equality.[21] The amendment sought to rectify this by making daughters coparceners in their own right. Section 6 of the HSA, 1956, was entirely substituted.[9, 21]

Daughter as a Coparcener

The amended Section 6(1) of the HSA, 1956, stipulates that on and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by 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.
Any reference to a Hindu Mitakshara coparcener is now deemed to include a reference to a daughter of a coparcener.[9, 10, 18] Furthermore, 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 is capable of being disposed of by her by testamentary disposition.[9]

Prospective or Retrospective Application? The Judicial Seesaw

Following the 2005 amendment, a significant legal question arose regarding its applicability, particularly whether it applied retrospectively. The Supreme Court initially addressed this in Prakash and Others v. Phulavati and Others[2], where it held that the amendment was prospective in nature. The Court ruled that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 (the date the amendment came into force), irrespective of when such daughters were born. This meant if the coparcener (father) had died before 9-9-2005, the daughter could not claim coparcenary rights.[2]

However, a conflicting view emerged in Danamma @ Suman Surpur & Anr. v. Amar & Ors[6]. In this case, the Supreme Court held that daughters would get coparcenary rights even if their father had died prior to the 2005 amendment, provided the daughter was alive on the date of the amendment. This created uncertainty in the legal position.

The Vineeta Sharma Resolution: Clarifying the Conundrum

The conflicting interpretations were finally settled by a larger Bench of the Supreme Court in the landmark case of Vineeta Sharma v. Rakesh Sharma and Others[1]. The Court held:

  • The provisions of the substituted Section 6 confer status of coparcener on the daughter born before or after the amendment in the same manner as a son, with the same rights and liabilities.
  • The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition, or testamentary disposition which had taken place before 20th December 2004.
  • Since the right is by birth and not by dint of the death of the father coparcener, it is not necessary that the father coparcener should be living as on 9-9-2005.[1, 22, 23]
  • The Court clarified that the amendment is prospective in its operation, meaning it applies from 9-9-2005. However, its effect is based on an antecedent event, i.e., the birth of the daughter. The daughter's right is by birth, and this right crystallizes on 9-9-2005 if she is alive then.
  • Vineeta Sharma[1] also clarified the meaning of "partition" for the purposes of the proviso to Section 6(1) and Section 6(5). A plea of oral partition cannot be accepted unless it was acted upon and supported by public documents. A partition is one effected by a registered deed or by a decree of the court.[1]
This judgment overruled the view taken in Prakash v. Phulavati[2] on the aspect of the father needing to be alive on 9-9-2005 and harmonized the position with Danamma[6] to a large extent, providing much-needed clarity.[1]

Implications of the Amended Section 6

The amended Section 6, as interpreted by Vineeta Sharma[1], has far-reaching implications for Hindu succession law.

Impact on Pending Suits and Past Partitions

The proviso to Section 6(1) states that nothing in the sub-section shall affect or invalidate any disposition or alienation, including any partition or testamentary disposition of property that had taken place before the 20th day of December 2004.[9, 10, 18] Vineeta Sharma[1] affirmed this, protecting transactions finalized before this cut-off date. In Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another[21], the Supreme Court had held that the rights of daughters under the 2005 amendment could be recognized even if a preliminary decree for partition had been passed, as long as the final decree had not yet been passed. The court emphasized that the legislative intent was to ensure that daughters are not deprived of their rights due to pending litigation.[21] The clarification in Vineeta Sharma[1] regarding what constitutes a valid partition (registered deed or court decree) is crucial in preventing sham claims of oral partitions to defeat daughters' rights.

Nature of Property Inherited by Coparceners

Property to which a daughter becomes entitled as a coparcener under the amended Section 6 is held by her with the incidents of coparcenary ownership.[9] This is distinct from property inherited by an individual under Section 8 of the HSA, 1956. As held in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others[4], property inherited by a son from his father under Section 8 (where the father held it as separate property or it devolved due to notional partition under the old Section 6 proviso) is his individual property and not HUF property in his hands vis-à-vis his own sons. The daughter, now a coparcener, holds her share with rights similar to a son in the coparcenary, which includes the right to demand partition and manage the property.

Continuity of Joint Family Status

It is important to note that a notional partition under Explanation 1 to Section 6 (both old and new, where applicable for determining the share of a deceased male coparcener if he dies leaving specified female heirs or male heirs claiming through them) is a legal fiction for the purpose of ascertaining the deceased's share. It does not automatically result in the disruption of the joint family. As held in State Of Maharashtra v. Narayan Rao Sham Rao Deshmukh And Others[5], a joint Hindu family continues to be joint unless its members explicitly separate, even if a notional partition is deemed to have occurred for succession purposes under Section 6. The status of the family for other legal purposes (like land ceiling acts) remains joint until an actual partition by metes and bounds takes place.[5]

Conclusion

The journey of the law on devolution of interest in coparcenary property in India reflects a significant societal and legal transformation, moving from a patriarchal system towards gender equality. The Hindu Succession Act, 1956, initiated this change, and the Amendment Act, 2005, took a decisive step by making daughters coparceners by birth. The Supreme Court's judgment in Vineeta Sharma v. Rakesh Sharma and Others[1] has provided definitive clarity on the interpretation of the amended Section 6, ensuring that daughters' rights as coparceners are robustly protected, irrespective of their date of birth or whether their father was alive on the date the amendment came into force. This evolution underscores the commitment of the Indian legal system to uphold the constitutional principles of equality and social justice, fundamentally altering the landscape of property rights within Hindu joint families.

References

  1. Vineeta Sharma v. Rakesh Sharma And Others (2020 SCC 9 1, Supreme Court Of India, 2020)
  2. Prakash And Others v. Phulavati And Others (2016 SCC 2 36, Supreme Court Of India, 2015)
  3. Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum And Others (1978 SCC 3 383, Supreme Court Of India, 1978)
  4. Commissioner Of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986 SCC 3 567, Supreme Court Of India, 1986)
  5. State Of Maharashtra v. Narayan Rao Sham Rao Deshmukh And Others (1985 SCC 2 321, Supreme Court Of India, 1985)
  6. Danamma Alias Suman Surpur And Another v. Amar And Others (2018 SCC 3 343, Supreme Court Of India, 2018)
  7. Nagappa Narayan Shetti v. Mukumbe Kom Venkantraman Shetti (Bombay High Court, 1950)
  8. Manorama Bai v. Rama Bai And Others (Madras High Court, 1956)
  9. Angammal And Chinnammal v. C. Sellamuthu And Senthilkumar (Madras High Court, 2007)
  10. Prakash And Others v. Phulavati And Others (Supreme Court Of India, 2015) - Reference Material 10
  11. Prakash And Others v. Phulavati And Others (Supreme Court Of India, 2015) - Reference Material 11
  12. Juthel Sahu v. Jagjeevan Sahu and Ors. (Chhattisgarh High Court, 2015)
  13. ANNA YADAORAO SONWANE and 4 ORS. v. MAHADEORAO PANDURANG NAGRIKAR (Bombay High Court, 2024)
  14. Sheela Devi And Others v. Lal Chand And Another (Supreme Court Of India, 2006) - Reference Material 14
  15. Ram Dei Musammat v. Mst. Gyarsi (Allahabad High Court, 1948)
  16. Pushpalatha N.V v. V. Padma (Karnataka High Court, 2010)
  17. Sheela Devi And Others v. Lal Chand And Another (2006 SCC 8 581, Supreme Court Of India, 2006) - Reference Material 17
  18. Prakash And Others v. Phulavati And Others (2016 SCC 2 36, Supreme Court Of India, 2015) - Reference Material 18
  19. Controller Of Estate Duty v. Smt. S. Harish Chandra (1986 SCC ONLINE ALL 805, Allahabad High Court, 1986)
  20. Prakash And Others v. Phulavati And Others (2016 SCC 2 36, Supreme Court Of India, 2015) - Reference Material 20
  21. Ganduri Koteshwaramma And Another v. Chakiri Yanadi And Another (2011 SCC 9 788, Supreme Court Of India, 2011)
  22. BASAVVA W/O FAKKIRAPPA MAKANUR v. GURUSHANTAVVA @ NEELAVVA (Karnataka High Court, 2023)
  23. RAMESH PRASAD PATHAK v. AJIT KUMAR PANDEY & ORS (Calcutta High Court, 2023)