• Sriram Hemmige and Abishek Jairam

Women as Coparcener: A Review of the Legal Confusions and Assessment of How They Were Resolved

Introduction

Women’s rights to inherit property within a Hindu household have developed throughout Indian history to ensure a more egalitarian society. Property rights provide individuals with social protection and economic autonomy within society.[1] Therefore, the laws governing it must be comprehensively scrutinized to reduce sexual discrimination and remedy any constitutional failure. This article aims to analyze the evolution of women’s rights to inherit property while also stating the limitations of the current system.


Traditional Hindu Law

Hindu laws of inheritance were provided in various scriptures and guided by different schools of thought in ancient India. The two prominent schools of thought that arose from different interpretations of the ‘Yagnavalka Smriti’ were the Mitakshara and Dayabhaga schools. The Mitakashara school was followed throughout most parts of the Indian subcontinent except the eastern part, where the Dayabhaga school of thought flourished. A prominent distinction between the two schools was their positions on the devolution of property rights relating to women. While the Mitakshara school prohibited women from being coparceners in the joint family and barred widows from enforcing partition against her deceased husband's family to receive a share, the Dayabhaga school varied from these positions. The latter maintained that if there are no male descendants, a widow has the right to enforce partition and receive the deceased husband’s share of property from his family. Though the Dayabhaga school offered a relatively liberal position, various other obstacles persisted. Women were still not absolute owners of land inherited from male ancestors, and their property would be passed on to the hands of the heirs, the last owner of the specified property. The only property that the women were entitled to and had complete ownership over was stridhan (gifts given to women at marriage).


Notional Partition

To counteract this injustice, a legal fiction by the name of “notional partition” was created. This fiction was enacted by section 6 of the Hindu Succession Act (HSA) 1956. According to this section, when a male coparcener died, leaving behind a class-1 female heir, a partition would have been deemed to have been enacted just before the male died. Hence, the female dependant would get her share through survivorship. Although this would not equal one whole share in the coparcenary, the women would be given monetary compensation that the coparcenary would not mind giving away. Uttam vs. Saubhag Singh & Ors [2] was a landmark judgment on this idea. The judgment, in this case, held that upon the death of a coparcener, the coparcenary comes to an end, and all the Joint Family Property gets converted into separate property. However, this position received a lot of criticism as it unnecessarily broke down the whole coparcenary to allot a share to the female dependant. Later, this position was reversed in Vineeta Sharma vs. Rakesh Sharma, which is elaborated below.


The 2005 Amendment

For the first time in the history of independent India, women would be on par with men on Hindu Inheritance law through an amendment enacted by the legislature in 2005. This was a significant change as it decentred the patriarchal structure of patrilineal inheritance of the Mithakshara coparcenary. Women would subsequently have a birthright on the coparcenary property of their joint family. However, the amendment garnered a lot of confusion, and a lot of adjudication was required to cement the new position of law. This article will explain these confusions and how they were resolved. They are listed below:


  1. Meaning of the term “By Birth” in sec. 6 clause 1.

  2. Purpose of the term “his” in sec. 6 clause 3.

  3. Do women born before 1956 get the benefits of the Act?

  4. The inheritance of agricultural land.

  5. Confusions that arise once a female becomes a Karta[3].



1. According to sec. 6 clause 1, “On and from the commencement of the Hindu Succession (Amendment) Act, 2005… the daughter of a coparcener shall, by birth, become a coparcener in her own right”. From a bare reading of the text, it is amply clear that an ambiguity exists as to whether a girl born before the amendment was enacted can be awarded coparcenary status. This matter first came up in Prakash vs. Phulavati [4], wherein J. Adarsh Kumar Joel took a very literal interpretation of the statute. He held that “the text of the amendment itself provides that the right conferred on a ‘daughter of a coparcener’ is on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. He further stated that “there is no scope for a different interpretation than the one suggested by the text of the Amendment…The respondents' contention that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if the death of the coparcener in question is after the Amendment.” In other words, retrospective action of the legislation was rejected by the court, and it was declared that the amendment would apply only in cases where both the co-parcener and daughter were alive after the amendment was enacted. This judgment was pronounced in 2016, and in 2018, a judgment was delivered by the same court, which was exactly opposite to what Prakash vs. Phulavati had laid down. In Suman Surpar v Amar [5], J. A. K. Sikri granted co-coparcenary rights to a daughter whose father had died much before the amendment had come into place. This resulted in a divergence of legal opinion, and the matter came to be referred to a larger bench for resolution in Vineeta Sharma v. Rakesh Sharma [6]. The Supreme Court decided on the reference in a landmark judgment pronounced on 11th August 2020.


In the Vineeta Sharma, the Supreme Court had finally passed a judgment that resolved the discrepancy of the opposing opinions in the aforementioned cases. The nature of rights that emerged from the amendment of 2005 was stated to be retroactive instead of prospective. Among the many arguments for the future disposition of the section was that the daughter of the coparcener also bore liabilities that accompanied the set of rights the daughter would receive due to sec. 6. If the law were to act retrospectively, it would induce many complexities into the working and understanding of the law. Further contentions revolved around a strict reading of the statute and the language used in the phrase “shall have the same rights,” which would mean that the daughters would receive the same rights and points towards the prospective nature of the act.

The Supreme Court dismissed all the contentions and stated that –

a) The right in coparcenary is by the individual's birth. Therefore, it would not be necessary for the father to be alive as of 9.9.2005. Survivorship was not a mode of forming a coparcenary but rather the method of devolution of property (succession).

b) Partition by way of legal fiction as presented by sec. 6 of HSA, 1956 did not amount to an actual partition. The essence of the section was to decide the proportion of share when a coparcener passed, leaving behind a class 1 female heir as per the schedule of the HSA, 1956.

c) The amendment provides the daughter with the same rights as the son, and they are to be treated in the same manner.


2. Another confusion in the new amendment is “his interest” in sec. 6 clause 3. Interestingly, when the amendment came about, the word “his” in sec. 30 of the HSA was amended to “his or her.” This is particularly important given the fact that,unlike other statutes where the term “his” or “her” could be interchanged and still retain the meaning of the statute, sec. 6 clause 3 states that “In this Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females.” In other words, the term “his” and “her” cannot be interchanged as and when one desires. There are two schools of thought concerning this. One view would be to take the intent of the legislation and the amendment into perspective and deem this as a mere typographical error. The second view would say that this would make the statute, as a whole, lose its meaning when you take sec. 6 clause 3 into perspective. This matter has not come up in any case and is yet to be settled.


3. In the Dannamma case, the respondent, Amar, challenged a women’s right to inherit on two counts. First, he had claimed that since his aunts were born before 1956, they could not derive the benefits that the HSA conferred on them, nor was the 2005 amendment applicable to them. Unfortunately, the lower court and the High Court upheld this view. However, the Supreme Court citing previous judgments in the Sharma Judgement, took a very different stance. They ruled that the women were eligible to inherit even if they were born before 1956.


4. In particular, the inheritance of agricultural land is another issue still skewed in favour of men. State laws govern the inheritance of agricultural land. In most cases, daughters are not given property rights, especially in rural areas where people feel that it will lead to fragmentation of landholding. When men are increasingly migrating to urban areas due to vocational pursuits, only 13% of women hold farmlands in their name. This will greatly impact their ability to secure loans to maintain their property and profit from it. This also means that their access to government-subsidized seeds and fertilizers will be greatly curtailed.


Section 4(2) of the HSA before the amendment did not allow women to own agricultural land. While this section was repealed by the 2005 amendment, a recent Allahabad High Court judgment delivered by J. Ram Surat Ram in Archna vs. Dy. Director Of Consolidation and others declared that “agricultural land is in the exclusive domain of State Legislature and Parliament has no power to enact any law. Section 4 (2) was only by way of clarification. On its basis, it cannot be said that the Hindu Succession Act, 1956 suo moto applies to agricultural land after its deletion.”


5. Mrs. Sujata Sharma vs. Shri Manu Gupta [7] is a landmark judgment of the New Delhi High Court. It was formally approved that a woman could become a Karta[8] in a coparcenary. [PB(J1] This was necessary as it was unclear whether this was possible in the statute. The issue which was to be decided by the court in this case was whether the plaintiff, a woman, being the firstborn amongst the coparceners of the Hindu Undivided Family (HUF) property would, by her birth, be entitled to be its Karta. By a thin majority of 5-4, her coparcenary had consented to her position as a Karta. The High Court declared in the affirmative, and as of now, this position of law persists, although the Supreme Court is yet to reiterate the same. Although, once it has been established that a woman can indeed become a Karta, it is pertinent to ask whether the same rights applicable to a male Karta are relevant to a female Karta.


Although the adjudications preceding the 2005 amendment resolved a lot of ambiguities and cemented the position of law, many confusions arise out of this which have not been particularly adjudicated in any court. They are listed below:


  1. On the intestate death of a female Karta, will her widower acquire a share just as a widow did in the case of a male Karta?

  2. Will the children of a married female Karta inherit a share in the HUF property of which she is a Karta?

  3. How will the self-acquired and HUF properties of a deceased intestate female devolve?


The Mithakshara Coparcenary is committed to its founding principles of ‘unity of possession’ and the ‘exclusion of females’ concerning material interest. Unity of possession refers to the fact the entire family is the property holding entity. In some ways, both principles are dependent on each other. As the property vests under the family's control, the exclusion of females is a necessary condition to ensure this. In traditional Hindu beliefs, women are given to the husband's family upon marriage, hence the term ‘Kanya-Dhan. Therefore, unity of possession would imply that the husband must not receive any share upon the intestate death of his Karta wife, resulting in property going out of the Joint Family.


The same logic would apply to the other questions also. The children of the female Karta may not be entitled to call for a partition or receive any monetary benefits upon their mother’s intestate death. This is because they will be coparceners in the family of their origin and will be entitled to derive benefits only from this family. But if there were a partition before the mother died, they would be eligible to receive her property through survivorship.


Concerning the self-acquired property of a female, there seems to be another anomaly. When the female has children, it is amply clear that her property will go to her children, but when she does not have children, there arises a problem. This became evident in Omprakash & Ors vs. Radhacharan. [8] In this case, a woman named Narayani Devi was married to a man named Dindayal Sharma in 1955. Her husband died within three months of marriage, and she became a widow. Following this, she was driven out of her matrimonial home because after the death of her husband her ties with her marital home were over. At her parental home, she was given an education which she used to get employment. Upon her intestate death, she left a lot of material belongings and a huge sum of money. Her husband’s relatives, who had nothing to do with her since they kicked her out of their home, were legally entitled to claim all of her property according to sec. 15 of the HSA. Even though the court declared that this was a ‘hard case’, it nonetheless let this injustice occur. It expressed their helplessness and granted the property to Narayani’s husband’s relatives.


Conclusion:

This article began with a brief discussion on traditional Hindu laws of succession and the concept of notional partition. It has then explored in detail five confusions that resulted from the 2005 amendment of the HSA. Additionally, it has listed out and explained the persisting confusions that are yet to be resolved. Although the 2005 amendment was a landmark change in favour of the rights of the woman property holder, it is the adjudication that preceded it that has fully cemented this position in law.

[1] Property Rights Laws - Property Rights for Women in India.” Paycheck.in. https://paycheck.in/labour-law-india/fair-treatment/property-rights . [2] AIR 2016 SC 1169. [3] The Joint Hindu family is patriarchal, and the family's head is known as Karta. Karta is the family's most senior male member, acting as the family's representative and acting on behalf of the family. Because every family needs a head member who can care after the welfare of minor members and females in a Joint Hindu Family, there is a fiduciary relationship between the Karta and the other family members. [4] 2016) 2 SCC 36. [5] (2018)3 SCC 343. [6] (2020) S.C.C OnLine SC 641. [7] CS(OS) 2011/2006 [8] (2009) 15 SCC 66.

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