The controversy surrounding the inheritance right of women in India had enjoyed a prominent position in the India legal, political and socio-economic endeavours. With the amendments of the Hindu Succession Act of 2005, it was believed that the said controversy has been laid to rest. Surprisingly, the lower court relying on the said amendment of 2005 delivered various contradictory interpretations in their judgments.
However, a two-judge panel of the Supreme Court of India had in the case of Danamma v. Amar, while overruling the lower courts on the 1^st day of February 2018 affirmed the equality of the rights of women with their male counterparts in the inheritance of property in a Hindu Undivided Family. The Supreme Court went further to hold that the provisions of the amended Hindu Succession Act of 2005 which formed the bedrock of their judgment in the said case have a retrospective effect.

The Hindu Undivided Family (HUF)

A HUF connotes a family structure which exists amongst the Hindu in India. This entails a distinct legal personality including sons, daughters and wives in a family of about four (4) generations. Any person(s) who falls within the instant explanation of a HUF acquires an undivided property interest in the Hindu Family property right from birth.

 

The inheritance Right of Women under the Hindu Succession Act of 1956

The Hindu Succession Act of 1956 is the principal enactment which governs and defines the extent of the inheritance rights of all persons who are under the Hindu Undivided Family. The inheritance rights under the 1956 Act provides as follows:

Firstly, the Hindu Succession Act, 1956 governs the distribution of the estate of a person who died without making a will. The provisions of this Act applies to all heirs (Hindus) of the deceased who died intestate.

Secondly, the Act accorded recognition to the age-long concept and principles of the Hindu Undivided Family as hereabove described. As those who are entitled to inherit under the Hindu Undivided Family are known as Coparceners. While the property which is subject of inheritance under the HUF is the coparcenary property.

Thirdly, the coparcenary property may be ancestral property and or self-acquired property.

Fourthly, the wives and daughters of a coparcener have entitled a share in the coparcenary property as they do not qualify as coparceners but mere members of the HUF.

 

The inheritance Right of Women under the Hindu Succession Act of 2005 (As Amended)

The Hindu Succession Act of 2005 is an amendment to the Act of 1956. Prior to the amendment of 2005 upon marriage, a daughter is automatically disentitled to inheritance and ceases to be a member of the Hindu Undivided Family as she will become one in her husband’s family. With the amendment of the Hindu Succession Act of 1956 in 2005 (particularly Section 6 thereof) the amended introduced the following:

Firstly, a daughter from birth becomes a coparcener in an undivided property of a Hindu Undivided Family. Unlike the provisions of the 1956 Act, a daughter as a mere member is not entitled to requisition for the partition of undivided joint family property.

Secondly, the amendment of 2005 only accorded the daughters the status of a coparcener in the coparcenary property. Mothers, wives and widows are still members as provided under the 1956 Act.

Thirdly, a daughter even upon death as at the 9^th day of September 2005 is entitled to a share in her father’s estate. This entails that her children can requisition for their late mothers share in their maternal grandparent’s estate.

What is Partition?

The school of Mitakshara offered a definition of partition. They gave the concept of partition under the Hindu Undivided family a bicephalous approach. On the first part, they understand partition to be the termination cum severance of status or interests of the coparceners and secondly, the severance or division of the property in compliance with the interests and status so determined and severed.

The right to partition is of two forms which are either an absolute (total) or partial partition.

Total Partition

This form of partition is seen where the partition is over the coparceners as well as over the property under coparcenary which is absolute.

Partial Partition

This can either apply to either the property or the members. In the case of a member seeking to terminate his relationship with the property because his will cannot be foisted on other members, he shall be at liberty to sever his ties with the family. In some cases, the coparceners may severe their interest in some of the property leaving their interest fused in other property.

The underlisted are properties which can be subject to partition from the estate of a deceased who died intestate.

1. A joint family debt which can be offset through the proceeds of a family joint property has been paid up.
2. A personal debt of a father who is not incapacitated by the cloak of immorality has been paid up.
3. Adequate provision for maintenance of the female and disqualified heirs have been made.
4. Adequate provision for the marriage expenses of the unmarried daughter(s) of the family has been made.

Under the 1956 HSA, every male as listed below is a coparcener and can claim partition irrespective the school of jurisprudence. They are:

1. Fathers
2. Sons
3. Grandsons
4. Great-grandson
5. Unborn Son but conceived at the time of partition because once there are pregnancy and communication to the family, partition ought to stay until the child’s delivery.
   Where the parties act to the contrary, a fair share of the property partitioned must be reserved for the unborn child.
6. Illegitimate son though not entitled to a partition can pursuant to a requisition for partition seek maintenance. Although, this is fraught with controversy as to the extent of his share over a natural born, an adopted son has a right to partition.

While some views that sons born after partition should claim from the shares of their fathers, however, it is generally accepted that a son born after the partition is entitled to a share in the property. It is immaterial from whose share it is emanating from.

A person who purchased the right of coparcener when there is a pending suit against the property of the coparcenary, such purchaser is permitted to seek for partition.

A male member of a Hindu family, by virtue of his birth, is a coparcener, where he is absent at the time of partition is entitled to a share in the partition and where the share is not reserved, he can exercise his right to reopen the partition.

Whilst under the regime of the Hindu Succession Act of 1956 the males (who are the recognized coparceners are entitled to seek and get shares in a coparcenary property upon partition, those persons who cannot requisition for partition are also granted some shares in the estate.

Firstly, the father’s wife is entitled to a share where partition occurs between her husband and sons. These class of persons shall be entitled to a share in equal proportion to that of her sons.

Secondly, daughters/Sisters are entitled to shares in equal proportion to that of their brothers/sons from a partitioned property

Fourthly, mothers – A mother whose husband is late is entitled to shares where there is a partition, likewise, a step-mother even if she is without a child is entitled to a child (though a different school of thought with respect to a childless stepmother contends the above view to the contrary).

Furthermore, Grandmother and Step-Grandmother are entitled to share in the partition where there is a partition between her grandson upon the demise of his father (who is her son). Again, here partition occurs between her son and a son or sons of her other son who predeceased her, an equal share to that of his grandsons in this scenario shall be hers.

Finally, where partition occurs between her grandsons and their father being her son, she is entitled to a share which (according to some schools of thought) shall be in equal proportion with that of her grandsons.

Where there is a widow(s) to a coparcener, where one is vested with the right of survivorship over the property to which their late husband is a coparcener to, the said right has an absolute right to partition thereby severing their joint ownership of the property.

Modes Of Effecting Partition

1. By testamentary distribution/instrument (Will)
2. By conduct
3. By Agreement
4. By Notice
5. By Arbitration
6. By Apostasy
7. The marriage of a coparcener under the Special Marriage Act
8. By proceedings in the Court of law
9. By renunciation
10. By the sale of any of the coparcener to another
11. By any other conduct

The Attitude of the Court towards the Inheritance Rights of Women Under the Hindu Succession Act as Amended in 2005: The Case of Danamma v. Amar (2018).

Facts of the Case

In 2002, the two daughters of Mr Gurulingappa Savadi who died intestate petitioned the court to enforce their inheritance right pursuant to the provisions of the Hindu Succession Act of 2005. The trial court and subsequently the High Court sitting in Karnataka dismissed their case relying on the fact that their birth and the suit pre-dated the Hindu Succession Act as amended in 2005. The petitioners dissatisfied with the decisions of the courts below approached the Supreme court of India by a Civil Appeal.

The question of law which was put forward for the supreme court to determine was “whether by being born before 2005, the appellants are disentitled to a share in their deceased father’s estate contrary to the dictates of Hindu Succession Act of 2005 as amended?”  And in the alternative, the appellants asked the Supreme Court “whether or not they are coparceners by virtue of the provisions of Section 6 of the HAS 1956 as Amendment in 2005?”

Judgment

The Supreme Court after entertaining arguments from the Appellants and the Respondents considered the provisions of Section 6 Supra and held as follows:

1. The decision of the court below i.e the High Court of Karnataka was set aside as same was reached in error of law.
2. The Supreme Court held in consonance with Section 6 of the HAS 2005 that daughters are entitled to in the ancestral property and this right cannot be derogated upon because she was born before the 2005 Amendment.
3. The court further held that the amendment of 2005 applies retrospectively hence applicable to all suits bothering on partition and distribution of estates filed and pending as at 2005.
4. The Supreme court further posited that the intention behind the amendment of the HSA in 2005 was to accord women (daughters) equality with their brothers in succession and allied matters.

 

Conclusion

The judgement of the Supreme Court is generally perceived as what laid to rest the age-long controversy surrounding the inheritance rights of women. It is vital to state that the decision of the Supreme Court merely re-echoed the provisions of the HSA 2005, Section 6 thereof.

It is observed that it took quite long for the Courts to give the true meaning of Section 6 of HSA 2005. On the other hand, the decision of the Supreme Court has been criticised for the retrospective effect accorded to the HAS 2005 since the Act did not expressly provide for such. It is pertinent to observe that the decision of the Supreme Court further enforced the right to equality of both sexes as enshrined in the  Constitution.