Note on Hindu Succession - Manuscript by B.V. Jigjinni
B.V. Jigjinni, Advocate
High Court of Karnataka, Bengaluru
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Note on Hindu Succession - Manuscript by B.V. JigjinniThere was long agitation that the daughters born in a Hindu Joint Family, were treated separately, in the matter of family heritage - ancestral property - merely on the ground of their sex, though in all other respect they possessed identical attributes of their male siblings. After the Constitution of India came into force in 1950, this discrimination was violative of their fundamental right for equal treatment and the discrimination on the basis of sex or gender merely, was void whatever may be the social circumstances when the Rules were framed by Shastric Laws. With the spread of education, health, changing social atmosphere etc., it began to appear unjust and unreasonable to deprive a daughter of equal right with her male sibling, in sharing the ancestral heritage. As per Mitakshara Law (hereafter "Shastric Law");
"A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter on her marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The Joint Hindu family is therefore a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption
The fundamental principle of the Hindu Joint family is the sapindaship without that it is impossible to form a Joint Hindu Family. With it as long as a family is living together, it is almost impossible not to form a Joint Hindu Family"
"The Joint Hindu Family with all its incidents, is thus a creature of law and cannot be created by an act of parties, except to the extent in which a stranger maybe affiliated to the family adoption.......
.........the appellant's wife become his Sapinda on her marriage with him. The daughter too, on her birth became a Sapinda and until she leaves the family by marriage, the sapindaship will bind her to the family of her birth" ....... The wife and unmarried daughters are members of his family. He is not by agreement making them so."See [AIR 1976 Supreme Court - 109 Para 13 and 14 Surjitlal v. CIT]
"A Hindu coparcenary is a much narrower body than the Joint Family. It includes only those persons who acquired by birth an interest in the Joint or coparcenary property. These are the sons, grandsons, great grandsons of the holder of the joint property for the time being" [Mulla Hindu Law Para 213] In Para 214 (2) it is stated
"A coparcenary is purely a creature of law, it cannot be created by an act of parties save,in far that by adoption a stranger may be introduced as a member thereof"See also 9 Moors Indian Appeals 195 Abraham v. Abraham. See also Paras 233 and 237 Ragahvacharian's Hindu Law. See Also AIR 1970 Supreme Court 14, Para 4. In ILR 33 Bombay 669 at 685 and 686 (Kalagavada v. Somappa) The court was discussing the opinion expressed by different Shastric scholars about the ancestral property and its acquisition by a grandson (See Pages 685 and 686). Their Lordships observe: According to Virmitrodaya (Sarkar's Translation)
"in the grandfather's property the grandson also acquires ownership by birth. The father is a link so far that through him Sapinda relationship between the grandfather and grandson is brought about. But when the relation has once been brought about by birth, the grandson become an entity by himself, and continuity of the relationship does not depend on the continuance of the father's relationship to the grandfather. Even if the father dies or become an ascetic or outcast and thereby ceases to have any right to the grandfather's property, the right of the grandson, born before any of those events, do not cease, but continue.
I have quoted above the fundamental concepts, which are classed a status. Hindu Joint Family has status, so each member of it has status, a coparcener has also status, so too the manager of the joint family. Status is a legal character, which is conferred by Law [AIR 1974 SC 199: AIR 1989 SC 1834]The Shastric law conferred that status on male members only. Now the State Legislatures or Parliament are empowered to confer that status on female member and make her eligible to enjoy all the rights which were given to a male member of the joint family. The first step was taken by the five States i.e., Kerala, Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. The Kerala model is different, because of a number of different personal laws in that State. The other State laws are substantially, identically worded in defining the attribute of the female coparcener. As noted earlier the definition clause defining the status of the unmarried daughter, who was to be a coparcener is substantially same under the State Acts and the Central Act (39/2005)Interpretation of these sections had come up for consideration before the High Courts and the Supreme Court. There is no unanimity amongst these decisions. The provision is interpreted by the Benches of the Supreme Court in a different manner. In Andhra Pradesh and before the Supreme Court,the interpretations of this provision arose (during the pendency of the proceedings), as the new Hindu Succession (Amendment) Act came to be invoked by the daughters - during the pendency of the suit, appeals or during the final decree proceedings. In Andhra Pradesh, the question arose during pendency of the Final Decree Proceedings (FDP) in a suit for partition. The shares were given only to the sons and there was direction that the sharer brothers should make provisions for the maintenance and provision for marriage expenses of (Defendants 5 to 9 who were) daughters and maintenance of Defendant 3 out of the joint family properties by each of the Plaintiffs, defendants 1 and 4. During the pendency - the Andhra Pradesh passed the Hindu Succession (Andhra Pradesh Amendment) Act, 1986. It came into force on 05th September 1985. The daughters applied for their share in the course of the FDP as per the new Act. The Trial Court rejected their claim. So, the daughters filed Revision Petition before the High Court. The High Court set aside the Trial Court's order and granted the claim of the daughters. This decision is reported in AIR 1990 Andhra Pradesh 263. Against this order there was an Appeal to the Supreme Court. The Apex Court (K.N. Singh and P.B. Sawant, JJ) dismissed the SLP (1991)3 SCC 647, observing;
"Hence, in our opinion the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29A was not attracted in the present case and the respondent daughters were entitled to their share in the family properties."AIR 2000 Supreme Court 3191 - Makineni Venkata Sujatha v. Land Reforms Tribunal -(M. Jagannadha Rao and K.G. Balakrishnan, JJ). The proceedings had commenced under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973. The parties were required to file the declarations about excess land as on 1-1-1975. The "Family Unit" to be lawfully held was defined under Section 2(f) of the Act. The Appellant - Makineni Venkata Sujatha was a minor's on 1-1-1975. So, she had no right to file any declaration separately, as she was part of her father's family. The Andhra Pradesh Hindu Succession (Amendment) Act 1986, came into force with effect from 05/09/1985. It was contended for her (See Para 8) that the new right as a coparcener was as "the Section specifically stated that it was a right by birth". So, her share which was included in her father's holding had to be deducted for calculation of excess land Rejecting this argument in para 09 of the Judgement, their lordships observed
"The High Court held that the incidence of coparcenary began from 5/9/1985. It also held that Section 29 A could only override the provisions of Section 6 of the Hindu Succession Act, 1956 and would not override the provisions of the Andhra Pradesh Land Reforms Act 1973. We are in entire agreement with the said judgement."In Para 10 their Lordships state; "Section 29A of the Hindu Succession Act 1956 (as amended) conferred a right, on the unmarried daughter as on 05/09/1985 in the Hindu Joint Family property with the incidence of right by birth" The High Court judgment referred to is reported in (1998) 1 Andhra Law times 496 Utkur Sarat Kumar v. Authorized officer (Lingaraj Rath and Chalameswar JJ. In Para 10 their Lordships had observed;"A major daughter was not a coparcener in a Hindu Joint Family. She was made so only by virtue of the 1956 amendment with effect from 05/09/1985. But though she become a coparcener by her birth, yet the incidence of the coparcenary begins from 5/9/1985 only" AIR 2003 Supreme Court 2322 - B. Chandrashekar Reddy v. State of Andhra Pradesh (K.G. Balakrishnan and P. Venkatrama Reddi, JJ.) This was also a case under the Andhra Pradesh Land Reforms Act, concerning ceiling area and the impact of the Hindu Succession (Amendment) Act 1986 (AP amendment). As per Section 4 (f) the "Family Unit" was defined, which included the individuals, his spouse, minor sons and unmarried daughters only and not married major daughters. Later, Section 4 of the Act was amended by enacting Section 4A, by which major sons, were entitled to additional area for their ceiling limit. In 1986, the Andhra Pradesh Hindu Succession(Amendment) Act, came into force. So,Appellants wanted to rely on this new provision, Their Lordships reiterated their opinion that "the daughters acquired a right by birth as they were deemed to be treated as coparceners of the Joint Family and they have a right to seek partition ...." However, their claim was rejected as they could not avail of that provision for ceiling limit, which was fixed by law earlier. 2006(8) SCC 581 - Sheela Devi and others v. Lal Chand another (S.B. Sinha and Dalveer Bhandari, JJ.) In this case the person in respect of whose property the controversy had started had died in 1989. So, the Court held "The succession having opened in 1989, evidently, the provisions of the Amendment Act 2005, will not apply" 2006(6) SCC 800 - Lehja Bai v. Sewanti Bai (R.V. Raveendran and J.M. Panchal, JJ) In this case the succession had opened before 2005 Act/ The Court has considered how the shares have to be worked out as per the old Section 6 of the Hindu Succession Act, 1950. 2006(8) SCC 656 - Anar Devi v. Parameshwari Devi - (B.N. Agarwal and P.P. Naolekar, JJ) This case was also about succession that had opened before 2005 Act. It states how the shares are to be fixed as per the law then in force. AIR 2012 SC 169 Ganduri Koteshwaramma v. Chakiri Yanadi - (R.M. Lodha and Jagdish Singh Khehar, JJ) In this case the Appellants who were sisters of Respondent No. 1, whose father was Chakiri Venkataswamy filed suit for partition of Schedule A, B, C properties claiming 1/3rd share. Defendant No. 1 was the father. The Defendant No. 1 died in 1993 during the pendency of the suit. So, the Plaintiffs claimed 1/3 share plus 1/4 share in the 1/3 share of Late Father. The suit was decreed in favour of the Plaintiffs, on March 19, 1999 and a preliminary decree was passed. On 27th September 2003, this decree was amended declaring that Plaintiff was entitled to equal share along with defendants 2 to 4. The preliminary decree was accordingly amended. A commissioner was appointed by the Trial Court for division of the suit properties. He submitted his report. Before passing of final decree, the Central Act of 2005 (Hindu Succession Amendment Act) came into force. So, Appellants (Defendants 3 and 4 in the suit) applied for grant of 1/4th share each in the suit properties. The Trial Court granted the prayer. There was an appeal to the High Court (A. P). A single Judge allowed the Appeal and set aside the trial court's order. Hence, the appeal to the Apex Court. The Apex Court held that on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The court held that mere passing of the preliminary decree would not debar the daughters from claiming their new right in the FDP. Relying on the decision in Sai Reddy's Case and Phoochand's Case in AIR 1967 SC 1470, they allowed the appeal and restored the Trial Court's order dated 15 June 2009. (2013) 9 SCC 419 - Rohit Chavan v. Surinder Singh (Chandramauli Prasad and V. Gopal Gowda JJ.) In this case the subject land had been allotted to Gulab Singh in a family partition. Rohit was his son, who was born on 25/03/1987. Gulab Singh released his rights in the suit land at 6 Kanals in favour of his brother's son Surinder Singh on 19/05/2004. Earlier he had sold 8 Kanals of land to Defendant No. 3 to 5 on 19/05/2000. So, Plaintiff Rohit filed the suit to set aside the release transaction as also the sale to Defendant Nos. 3 to 5 as being null and void. Defendant Surinder Sing's contention was that the subject land became the separate property of Gulab Singh, by being allotted to his share. So, he had full right to release-gift- it to the Defendant No. 1 and also to sell the portions to the other defendants. The Apex Court held that the property did not lose its character as joint family property; as the release deed was without consideration, it was void. The sales to Defendants 3 to 5 were also held not binding. AIR 2009 Supreme Court 2849 Sekar v. Geeta (S.B. Sinha and Dr. M. Sharma JJ). In this case the question related to Section 23 of the Hindu Succession Act 1956, where the female member had no right to ask for partition of dwelling house which was wholly occupied by male members as dwelling house. This section is now deleted under 2005 Act. While dealing with the matter the court has stated that 2005 Act is prospective in operation. AIR 2016 Supreme Court 769 Prakash v. Phulavati (Anil R. Dave and Adarsh Kumar Goel, JJ.) One Yeshwanth Chandrakanth Upadhye died on February 18th, 1988. His wife was Sunanda Bai. They had no male issues, but only daughters of whom Phulavati was one. Sunanda Bai, took Prakash in adoption. The Subject property was ancestral. In 1992 Phulavati filed a suit for partition against Prakash and impleaded his brother and sisters as Defendants. During the pendency of the suit the Hindu Succession (Amendment) Act 2005 came into force. So, Plaintiff got the plaint amended. The trial court partly decreed the Plaintiff's claim. The Defendant appealed to the High Court, claiming that as per 2005 Act, she was entitled to inherit the property as a coparcener. The Defendant/Appellant contented that the Plaintiff could not claim share in the self-acquired property of the member of the joint family property, that her claim could be considered only under Section 6 of 1956 Act, as it stood before 2005. The High Court set for consideration the issue, whether the Plaintiff is entitled to the share under Section 6 of the Act 39/2005. After elaborate consideration of legal position the High Court held that Phulavati is entitled to 1/7th share as per the new 2005 Act. Hence the appeal to the Supreme Court, by the Defendant No. 1. In Para 17 of the Judgment the Apex Court observes:
"The text of the Amendment itself clearly provides that the right conferred on a daughter of a coparcener is `on and from' the commencement of Hindu Succession (Amendment) Act, 2005. Section 6(3) talks of death after the amendment, for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment"The Court further heled that the Act was prospective in operation. So, their Lordship summarised their conclusion in Para 23 of the judgement in these words.
"23. Accordingly, we hold that the rights under the amendment are applicable to living daughter of living coparcener as on 9thSeptember 2005, irrespective of when such daughters are born."Section 6 (3) was a provision which regulated the succession to the property held by a deceased coparcener. This Section was part replacement of former Section 6 of the 1956 Act. The Section made it clear that this Section would apply to a case where the coparcener dies after the new Act commenced. In that context the Court observed that the dying coparcener should have been alive on the date of commencement of the 2005 Act. The next two judgements under consideration would show that this judgement (Phulavati Case) had not at all been carefully read and understood. The confusion has arisen due to the language used in Para 18, 23 and 26(2) of the Judgment. In conclusion the order of the High Court was set aside, and the case was remanded to consider the matter afresh. The result was that the matter had to be decided s per law before 2005; that the daughters could not claim to be coparceners. 2018(1) Kar. L.R. 161 (SC) Danamma @ Suman Surpur v. Amar (A.K. Sikri and Ashok Bhushan, JJ.) This was a suit filed by the grandson of the propositus Gurulingappa Savadi for partition and separate possession of three items of ancestral properties. Gurulingappa had 2 sons Arun @ Arunkumar and Vijay. He had 2 daughters: Mahananda and Danamma. Amarwas the son of Arun. Sumitra was Gurulingappa's wife. Amar filed the suit for partition on July 1, 2002, claiming 1/5th share. Gurulingappa had died in 2001. His widow was Defendant No. 8. He contended that the daughters had no right to claim any share. In the suitAmar's father was Defendant No. 1, his uncle Vijay was Defendant No. 5; his own sisters were Defendant Nos. 3 and 4 i.e., daughters of Arun. Danamma was Defendant No. 6, and Mahananda was Defendant No. 7. The Defendant No. 1 did not file any Written Statement. The Defendant Nos. 2, 3 and 4 filed Written Statement supporting the Plaintiff. Defendant No. 5 contested the suit setting up an oral partition. The Trial court decreed the suit in the Plaintiff's favour. As Defendant 8 (mother) had died during the pendency, her share was to devolve only on the Defendant Nos. 1 and 5 (i.e., sons) A preliminary decree was passed on 09th August 2007. Defendant Nos. 5, 6 and 7 (daughters) filed RFA No. 32/2008 to the High Court. It was dismissed on March 4th, 2012. So too the review application. Hence the appeal before the Supreme Court. As per the discussions made earlier, in para 18, their Lordship set aside the Judgement of the High Court and upheld the claim of the daughters as per the Act of 1956, before 2005 amendment. From Para 20 onwards they deal with the Amendment of 2005, and the judgement in Phulvati's case to hold that the new Act of 2005, applied to the claim made by Danamma and her sister. The court held that the daughter gets right under the new Act by birth. I will reproduce the entire para 24 to understand the reasoning.
"24. Section, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth became a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first state of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s(1)(a) and (b)."Further, in Para 28 the conclusion is stated, which means that, though the daughters were married they were given benefit of 2005 Act, contrary to Section 6(1) of the Act. The definition of coparcener preserved the sanctity of Sapinda relationship by enacting that the daughters must be unmarried, and the Law Commission also had recommended similarly. This decision allows a non Sapinda to be given the status of a coparcener. Obliviously, this decision is opposed to the provisions of 2005 Act. C.A. No. 1933 of 2009 - Mangammal @ Thulasi v. T.B. Raju - order dated 19/04/2018 (R.K. Agrawal and A.M. Sapre. JJ) (2018) 15 S.C.C. 662 In this case T.G. Basuvan was the prepositus. He had expired before the suit was filed. (O. S. No. 202/2003). He was survived by his widow, one son (Defendant No. 1) and two daughters(i.e., Appellants 1 and 2). The suit was filed by the daughters for partition. The trial court dismissed the suit on 25/02/2004. The Appeal to the District Court met with the same fate on 14/12/2005. The Appeal to the High Court was dismissed on 18/09/2006. Hence the Appeal to the Supreme Court by Special Leave. The Court held that the High Court Judgement holding that the claim of the appellants was barred by limitation and adverse possession was not sustainable when there was no proof of dispossession and no pleading by defendant about ouster. Then their Lordship considered the provisions of Tamil Nadu Hindu Succession (Amendment) Act 1989 which was relied on by the Plaintiff's daughters - i.e., Section 29A. In paragraph 10 of the judgement the Court says:
"(10) Moreover, under Section 29-A of the Act, legislature has used the word the daughter of a coparcener. Here, the implication of such wording means both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989. The similar issue came up for the consideration before this Court in Prakash and Ors. v. Phulavati and others., (2016) 2 SCC 36, this Court while dealing with the identical matter held at Para 23 as under: -
"23. Accordingly, we hold that the rights under the amendment are applicable to living daughter of living coparcener as on 9th September 2005, irrespective of when such daughters are born.""Then the court considered Danamma's case 2018(1) Scale 637; They observe that though in that case the father of the daughter had died in 2001, yet the court permitted the daughter's claim to the right in ancestral property in view of the amendment in 2005. The court tried to distinguish that case on the ground that it was based on the peculiar facts of the Danamma and that the court did not primarily deal with the issue of death of the father. So, their lordship concluded:
"Shortly put, only living daughters of living coparceners will be entitled to claim a share in the ancestral property"Simple and careful reading of the judgement in Phulvati's case would show that the same is misread and misapplied. In Phulvati's case the father had died many years before the suit. The benefit of Section 6(1) (2005) is given to unmarried daughter only because she has carried the pinda of the grandfather through the father. The name of the father is to show the genetic history. What benefit under the 2005 Act he is to get under Section 6(1)? In that case (i.e., Mangammal's) the ultimate decision was that the rights of the parties would be governed by 1956 Hindu Succession Act and not the Tamil Nadu Hindu Succession Act, 1989. From the above discussions it will be see that in some decision about A. P Amendment Act, similar to 2005 Act, the Supreme Court judgements say that the incidence of coparcenary starts from the birth of the daughter, but it commences, as per the law on the date on which the Act came into force. Most Judgements hold that the new provisions would apply even if the daughter was born before the new Act of 2005 came into force. Some judgements hold that even a married daughter is entitled to get the benefits, some judgments misreading the earlier judgements conclude that even if succession has opened before 2005 Act, they have extended the benefit of the Act of 2005. Most judgement read the phrase "by birth" in the definitions of coparceners as `from birth' and thus the coparcenary right starts from the date of birth of the daughters. The last case shows that both i.e., the daughters and coparceners must be alive to enjoy the benefit of the Amendment. Therefore, if one is dead, the law will be dead for the survivor. All there are Apex Court Judgements. At the beginning only I have stated the basic principles applicable to the Hindu joint family, members and the coparcenary, Section 6(1) of Hindu Succession Act 2005 opens with words `in a joint Hindu Family governed by the Mitakshara Law'. The Joint Hindu family is creature of law and has legal status. So, all the attributes involved in that concept are imported here' Coparcenary ship' is also a status, which implies that he is a male member of the joint Hindu family and he is one amongst three generations next to the owner in unbroken line of male descent. He gets this status by virtue of his entrance into the family as laid down by Shastric Law. He is invested with right to have interest in the family property the moment he is born. Only male members would be coparceners. Now the new Act of 2005 amends the Shastric Law and enables the daughter of the coparcener to be a coparcener. This is a new concept opposed to Shastric law. Hence a special legislative enactment was required for that purpose and this was done by the Act of 2005. The Hindu Succession (Amendment) Act 2005 amends Section 6 of the Hindu Succession Act 1956 by deleting the old Section 6 and enacting the new Section 6(hereinafter the Amendment Act will be referred to as 2005 Act and the Principal Act of 1956 as 1956 Act). The heading of the old and the new sections are similar. Section 6 of 1956 Act related only to a male coparcener. The new Section of 2005 Act applies to the male and female coparceners as under the new 2005 Act the daughter in a Hindu Joint Family is made a coparcener with effect from 05/09/2005. Section 6(1) and (2) of the new 2005 Act defines the status of the new daughter -coparcener and her rights in the joint family property. It is made clear that her new status is on par with her male siblings in the joint family. Section 6(3) contains provisions about succession to the joint family estate of a male coparcener from the date of the commencement of the new Act. Thus, if the death of the coparcener is on and after the new Act came into force, the succession would be governed by the provisions of 2005 Act. If he had died prior to 05/09/2005 i.e., on 04/09/2005 and before that the succession to his estate would be governed by the 1956 Act. Thus, it becomes clear that Section 6(3) regulates succession to the joint family property held by the male coparcener, if he died on 05/09/2005 and thereafter. A lot of confusion has arisen about the interpretation of Section 6(1) of 2005 Act. This provision was substantially similar to the similar Acts passed by the Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra states which had been passed earlier to the 2005 Act. I have already noted the Supreme Court decision up to date. Thought the decisions before 2005 disclosed difficulty in interpreting similar provisions in the State Acts, about the term `by birth', Parliament did not modify the language in enacting Section 6(1) and has substantially used the same language but has split the sentence in paragraphs. It seems that owing to the divergence of opinions, the matter has been recommended to be placed before a larger bench. Before proceeding further, I would quote some well-known principals regulating interpretations of the legislations. Parliament is presumed to know the law and the surrounding law. It must be presumed to have been aware of the relevant pre-existing law (Bennion on Statutory Interpretations at Page 547 (5th Ed.). So, when the 2005 Act was enacted, we have to presume that the legislature was aware of the provisions of Hindu Law, including the law regarding adoption, under the Hindu Law. This would, therefore, include the Hindu Adoption and Maintenance Act 1956. The provisions about the Hindu Joint Family, its constitution, its structure, rights and duties of its members were all well-known even to a common man. I have quoted some passages from the Supreme Court decisions in Surjit Lal `s case already. It is only an unmarried daughter who can be a member of the Hindu Joint Family for only till then she would be the Sapinda in the Sagotra family. The moment she marries, she would be the family member of her husband's family as her civil legal rights in her natal family stands severed. She would have only relationship by blood ties with natal family members like here parents and siblings [See Mulla Hindu Law Para 212; AIR 2001 Supreme Court 1701; ILR 32 Bombay 169 at 179 and 180]. A joint family consists of all persons lineally descended from the common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the Joint or coparcenary property. These are the sons, grandsons and great grandsons of the holder of the joint property for the time being. "Coparcenary is purely a creature of law: it cannot be created by act of Parties......." In Mulla's Hindu Law para 214 the formation of coparcenary and its genesis is stated: Under Hindu Law membership of joint family is status; the joint family property has status; Coparcener-ship has status; so too the adopted son. In 9 Moor's Indian Appeals 195 (Abraham v. Abraham), the Privy Council observes
"but parcener-ship, understood in the sense in which their Lordship have used the term, as expressing the rights and obligations growing out of the status of an undivided family is the creature of and must be governed by Hindu Law. So, all matters connected with the status under the Hindu Law will have to be considered under the provisions of the Law only. As status is a creation of law, it cannot be created by contract, estopped or even resjudicate as noted in AIR 1989 supreme Court 1834."Coparcener-ship, under the Hindu Law was limited exclusively to the male persons. The females were excluded from obtaining that status. In the Hindu Joint Family though the male and female issues of a coparcener were sapindas and sagotras and thus qualified to be coparceners, the male siblings i.e., the son was conferred that status based on his gender only and the daughter was disqualified only because of her gender and nothing else. So, the Parliament proposed to remove the discrimination as contented in Section 6 of the Hindu Succession Act 1956 by giving equal rights to the daughter in the Hindu Mithakshra coparcenary property as the sons have" and the 2005 Act was passed. Under Section 10 of the Hindu Adoption and Maintenance Act 1956 a Hindu female also can be adopted. Section 12 of the Act speaks about the effect of adoption. Inter alia, it says an adopted child "shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption". So, in the light of the "deeming" provisions, the adoptee shall be as if, he or she is the natural child of the adopter. We haveto assume that the parliament was aware of this provision, when the 2005 Act was passed. Section 6(1) of 2005 Act uses the term "daughter" of a coparcener. According to the principles of interpretation, the words used have to be given their natural meaning: In K.V. Muthu v. Angamuthu (AIR 1997 S.C. 628), their Lordships held that in common practice a son means a natural son born to a person after marriage. It is direct blood relationship which is the essence of the term in which `son' is usually understood emphasis being on legitimacy. In legal parlance it may include son, son's son, namely: the grand child and where law permits include an adopted son. The definition of the natural son stated here is fully according to the definition of "Aurasa son" in Mitakshra Law. So, whatever applies to a naturally born son would apply to the daughter also. In Uttar Pradesh and Meghalaya, under the General Clauses At, the term "daughter" is held to include an adopted daughter, where adoption is permitted by law. The confusion, giving rise to the divergence of opinion in the decisions quoted earlier is due to the phrase `by birth' for becoming a coparcener and the statutory dated 05/09/2005 "on and from" on which the daughter of a coparcener `becomes' a coparcener. If the daughter becomes a coparcener `by birth' i.e., by fact of birth i.e., from birth, then her status will be deemed to have arisen moment she was born at any time before 05/09/2005. But Section 6 positively says" 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 in the same manner as son". So, a question arises about the date of commencement of the status. If it is `by birth' then the specific date 05/09/2005 mentioned stands eclipsed. Both dates cannot be accepted to stand together, as the succession event is single only. The conversion of the daughter has to be only once and forever. Both dates cannot co-exist. We cannot presume that the Parliament intended to create such an absurd situation. `By' is a preposition word placed before a noun or pronoun to show in what relation the person or thing denoted by it stands in regard to something else. Prepositions are of three kinds - simple prepositions, compound prepositions and phrase prepositions. "Phrase prepositions" refers to group of words used with the force of a single preposition (see Wren and Martin High School English Grammar) (Para 368 and 373). Illustrations are given about the use of preposition `by' as phrase preposition. In Oxford Advanced Learner's Dictionary, the meaning of the word `by' is given; sixteen (16) examples are given showing the sense, which varies in the light of context. Illustrations No. 14 says "(used for giving more information about some body's background or character); be German by birth/ a lawyer by profession......." So, the phrase "by birth" can mean obtaining more information about the person. In this case it about the daughter. Here by stating that she is the daughter it becomes clear that she is naturally born as the son is. Reference may be made to the decision in ILR 33 Bombay 669 Kalagavada v. Somappa. On page 660 and 661 the various shades of the phrase "by birth" are given "By birth he acquired the gotra or family of his birth"; he acquired by the very fact of birth joint ownership; "grandsons" says Mitakshara, `have by birth a right in the grand father's estate equality with the son"; "Thus the competency being equal, the right by birth also being equal". At page 686 it is stated `when the relation has once been brought about bybirth, the grandson becomes an entity, by himself and the continuance of that relation does not depend on the continuance of the father's relationship to the grandfather". So, the phrase `by birth' can be used to expound the particular relationship between the coparcener father and his daughter. Bennion says at page 466, in his commentary to section 162, "This section states the important principle that a term or phrase may have different legal meaning in different act, or even within the same Act in it. If the term or phrase is grammatically ambiguous, it may have one of its literal meanings in one place and other literal meaning in the other". As noted earlier, coparcener-ship is a status which is created by law. It has to be created by a statute. It did not exist in a daughter, under the Mitakshra Law. This status was conferred by 2005 Act for the first time. It states "on and from" the daughter of a coparcener "becomes" a coparcener, which means that before that she was not, and could not be the coparcener. Such being the strong and clearest language of Section 6, we cannot by reference to ambiguous phrase preposition "by birth" cut down its stern implication that this status will arise prior to that date. In G.P. Sing's interpretation of statute there is reference to the English case Brighton Parish Guardians v. Strand Union, where it has been stated that, when in relation to the same subject matter different words are used in the same statute there is a presumption that they are not used in the same sense. Section 6 of the 2005 Act says "on" and "from" the commencement of the 2005 Act, the daughter `becomes' a coparcener. Here the term `on' indicate the time when something has to happen or happens. And the word from, as a preposition is indicative of outward movement or distance in relation to a point in space of time. In advanced Law Lexicon Book 2 at Page 1935 the term "from" is used as a function word implies a starting point, whether it be of time, place, or condition; and meaning having a starting point of motion noting the point of departure, origin etc. So, the term `on' and `from' as used here have different sense of meaning. In substance it may mean that the status will start on 05th September 2005 and it will continue thereafter also. Now the term `becomes' would mean change of condition - that is entering with a new state or condition by change from the former state or condition. This meaning becomes appropriate in the case at hand because the daughter who is also a sapinda like her brother in the joint family is converted into a coparcener by removing the discriminatory bar. So, this process would show that the daughter involved here is the naturally born child of the coparcener. Now in view of the Hindu Adoption and Maintenance Act, 1956, the adopted daughter is deemed to be the daughter of the adaptor. The deeming provision would require us to stretch the meaning even to the extent of shocking or astonishment. However the language used in Section 6, the purpose for which the 2005 Act was passed i.e., the specific purpose of removing the discriminatory bar in getting the coparcenary right by the daughter clearly show that Section 6 was not meant to confer that privilege upon any adopted daughter. It is for this reason it seems that the word coparcener daughter is used, who was to get this same status. It is worthy of note that in all the cases under consideration no doubt is raised that the section does not embarrass the situation where the daughter was born before the 2005 Act was passed. If she was unmarried and was member of the joint family and was a coparcener's daughter, then she possessed the required qualification to become a coparcener. If so, then `on' 05/09/2005 as she possesses the relevant qualifications, she was entitled to `become' the coparcener. The very fact that the section says `on' that date she becomes the coparcener presupposes that she possesses the necessary qualification for `becoming `before that event; and thus `on' she became the coparcener. The decision in 1950(2) All England Reports 525 (Master Ladies Tailors Case); AIR 1928 Privy Council 128 Municipal Council of Sydney v. Margret Alexander and AIR 2004 SC 4010 and 4015 will support this conclusion. As we have come to know the very purpose in enacting the Section 6 of 2005 Act, and also why the adopted daughter could not be the coparcener for the purpose of 2005 Act, we may have to read section 6 of the Act in such a way as that can clarify the real purpose. For this purpose, a little shuffling of words in Section 6may satisfy the purpose. In Bennion on Statutory Interpretations at Page 453 (5th Ed.), he states
"if therefore the interpreter is dealing with a garbled text where the words have got into wrong order, he or she puts the words into right order and thus considering afresh how to construe the corrected text". (This is one of the methods of purposive construction).Thus if we slightly modify the order of the words in Section 6 by transposing the phrase `by birth' and placing them after the word `daughter' and before the words `of a coparcener'; and these make the sentence read as "the daughter `by birth' of a coparcener" the intended meaning of section will be absolutely clear. This will be in accordance with the Statement of Objects and Reasons for the Act. Each and every word of Section 6 will be present in the Section; the difficulty arising from the Adoption Act will be removed and the section will be clearer to include the daughter born before 05th September 2005. In my opinion all the doubts that have arisen on account of the conflict of opinion will be settled if the above interpretation is accepted. [See AIR 1936 Privy Council 281 and 1969(3) All England Report 713 at 715 Para I and Page 717 para H and I].
Brief note about the Author - B.V. Jigjinni*
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