Prior to the development of equality rights in the world, the male heir was the preference. He was accorded with the title, devolution, and a succession of his parent’s estate and wealth to the detriment of the daughters and sisters.
More or less, the society was patriarchal. But in recent times and the General Assembly passage of the Universal Declaration of Humans Rights, 1948 at the United Nations, women are accorded the same rights as men. This speaks of equality and was adopted in the Constitution of various countries.
To create awareness of gender equality and its specifics, it became fundamental human rights which the government and the citizens must uphold.
To narrow down the objects of gender equality, a cursory look shall be taken on section 6 of the Hindu Succession Act of 1956 and section 6 of the Hindu Succession (Amendment) Act 2005.
These Acts will provide a breakdown of the rule of survivorship and succession in the Hindu traditions and customs. It will also draw out on the various decisions of the Indian Courts pertaining to the devolution of property either by customs or by law.
Section 6 of the Hindu Succession Act 1956
Section 6 made provision of the devolution of interest in a coparcenary property of a person who died intestate.
The law provided that when a person dies intestate leaving only male heirs, the coparcenary property will devolve accordingly to his male sons, grandsons, and great-grandsons. Such devolution shall only be inherited by the male heirs that are not more than three degrees to the coparcener.
Ultimately, this is defined as devolution of property by survivorship. It is absolutely rare for a family to be complete without a female heir but in instances where such occurs, the law has no effect. Therefore, the said property of the coparcener shall be divided equally among the male heirs in terms of survivorship.
This was the practice prior to the Act and thereafter. Women especially the wife of the coparcener was not entitled to any share in the devolution of the property as she was not considered as a direct bloodline of the deceased.
The Act also added that the devolution will not affect the deceased’s will if it is such and that the deceased has the right to will away his notional share to any member of the family. A particular keynote of the section is that male heirs such as sons are regarded as coparcener but daughters or female heirs were not regarded as a coparcener.
This difference sparked the basis for an amendment of the law.
Section 6 of the Hindu Succession (Amendment) Act 2005
Section 6 of the Amendment iterated that the devolution of a coparcenary property is either by survivorship or by succession. But it added, the property of a coparcener can only devolve by survivorship if there are only male heirs. In this instance, the customs will apply.
The devolution is by succession when the coparcener has both male and female children, then, the devolution will be in accordance with the law. This is only applicable when the devolution to the female is in the same class prescribed by law. Such devolution must be equal among all heirs of the deceased.
Changes introduced by the Amendment
The changes introduced by Section 6 of the Amendment Act are as follows:
- Both sons and daughters have equal rights. As such, they are both coparceners by birth irrespective of gender.
- The daughter of a coparcener has the same rights bestowed on the son of a coparcener.
- Just as rights are equal, so also, the liabilities. The Mitakshara coparcenary’s liabilities as is applicable to the son are also applicable to the daughter.
- The females such as daughters, granddaughters, great-granddaughters are also entitled to bequeath their equal shares as coparceners just like the male coparceners.
- The Act is applicable to a Hindu who dies whether testamentary or intestate after the commencement of the Amendment Act especially when his property interest pertains to a joint Hindu family property under the Mitakshara law.
- The classification of the female heir to inherit is as follows:
- The Daughter(s) (female heir of a coparcener),
- The Daughter’s-Daughter’s son (the third degree of a coparcener, that is, the predeceased daughter’s son),
- The Daughter’s Son’s Daughter (the predeceased daughter of the predeceased son’s daughter),
- The Daughter’s-Daughter’s Daughter (the third degree of the female heir to the predeceased),
- The Son’s Daughter’s Son (the predeceased great-granddaughter which is only applicable if the male heir or the grand is predeceased).
- The Amended Act removes the responsibility of debt repayment by sons, son’s son, and son’s-son’s son for their fathers, grandfathers, and great-grandfathers. Therefore upon the death of the latter, debt repayment does not transfer to the descendants but ends with the debtor. This is not only applicable to male heirs but also female heirs.
These are the breakdown of the laws applicable, the decisions of the courts pertaining to these shall be considered as well.
Decisions of the Court on Section 6-
Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo & Ors (1981) – In this case, the Plaintiff filed that the estate of the deceased be governed by the rule of lineal primogeniture whereby the estate of the deceased held jointly is divested among the male heirs regardless of the female heirs in the family.
The reason why the Plaintiff made such application was that they believed that the applicable law is not the Succession Act since it came into force after the death of the deceased rather the rule of survivorship.
The court held that the rule of lineal primogeniture, that is, a rule of survivorship is not applicable since the Hindu Succession Act was already in force after the death of Bhaiya A. Rudra Pratap Deo. The court simply pointed that the Old Act is retrospective in nature, unlike the Amendment which is made to be a prospective law
Yogendra & Ors v Leelamma N. & Ors (2009) – In this case, the deceased married two wives. The first marriage was legally carried out in the court and was covered by Section 5 of the Hindu Marriage Act 1955.
The said Act prohibits a spouse from marrying another spouse if the first one is still alive. Therefore, it prohibits polygamy. The first wife bore three daughters for the deceased namely Parvathamma, Leelamma, and Kamalamma.
The deceased subsequently married a second wife while the first wife was still alive and the second wife bore him a daughter, Dinesh. The court found that the marriage to the second wife was not covered under the Hindu Marriage Act.
The bone of contention was whether the daughter of the second wife was entitled to the deceased property as a coparcener under section 6 or under section 8 of the Amendment Act?
The court held that the Marriage Act rendered the second marriage null and void, as such; Dinesh was not a coparcener but an illegitimate child. She cannot inherit the deceased’s property as a coparcener under section 6 of the Hindu Succession (Amendment) Act but can inherit as an illegitimate child.
The Supreme Court Decision on Section 6 of the Act
Prakash vs Phulavati (2015) – This case highlighted the interpretation of the legislation pertaining to the Act. In this case, the daughter filed for an equal share in the estate of the father as a coparcener under the Act. The court considered the fact that the father died prior to the passage of the Act and delivered an interpretation.
It held that the Act was made to be prospective and not retrospective. Therefore, the Act will apply for the death of a person who died after the 9th of September 2005 when the Act came into force and not prior.
In the case when the deceased died prior to the commencement of the Act, the rule of survivorship shall apply to the family. Therefore, the daughter will have no equal share in the estate of the father.
In Danamma vs Amar, the Supreme Court took a different opinion. It was held that although the commencement of the Act signifies its applicability, so does the preliminary decree. In this case, the male sons who are the plaintiff claimed that the daughters of the male coparcener are not entitled to the estate of the father since he died before the commencement of the Act.
The said father died in 2001 and the sons filed for the devolution of the estate in 2002. The court adopted the decision in Prakash vs Phulavati held that the sons were right but took a different turn in the decision. The court held that the Act applies not to deaths after its commencement but also to the passing of the preliminary decree and the final decree.
The passing of the preliminary decree is an important factor in the devolution and partition of an estate. Therefore, in the instant case, the decree was passed in 2007, thereby making the daughters be coparcener and entitled to an equal share in the estate of their fathers.
The opinion of the Supreme Court Decision-
The Supreme Court decisions in the cases of Prakash vs Phulavati and Danamma vs Amar are both debatable. In the first instance, the court interpreted the commencement date to be 9th September 2005 which was the day the Act came into force and is made applicable to children conceived or given birth prior and after the commencement of the Act.
The only caveat is that the father must be alive after the commencement of the Act and not prior to it. But in the latter case, the court took a different position by implying that the commencement date is no longer applicable to birth or conception after commencement but also to the passage of the preliminary and final decree for deaths prior to the Act.
Although the court relied on Ganduri Koteshwaramma & Anor vs Chakiri Yanadi & Anor to reach this decision, it invariably created confusion and misinterpretation of the Act. As such, the lower courts may wonder, what is, the import or interpretation of the section of the law as it pertains to the date of applicability.
For now, the Phulavati’s case is still a dictum and can be relied upon pending when the court overturns its decision in Amar. The reason is that the decision in the latter case makes no practical sense because the Act only made mention of conception, birth, and death. Introducing passage of decree is another interpretation not envisaged by the legislators when drafting the Act.
Thus, unless the Act is amended, such decision needs to be overturned to avoid the lower courts relying on it as a stare decision.
Section 6 of the Hindu Succession (Amendment) Act 2005 speaks volume on gender equality and inheritance. It also highlights the concept of survivorship and succession of coparcenary property under the Mitakshara law.
The main aim of the Act is to ensure that male heirs and female heirs are entitled to inheritance as a coparcener under the law. Thus, the Supreme Court decision may have created confusion in the interpretation and such needs to be corrected soon.